Ancient Liberties

The Great Schism which, to this day, splits political views across the English-speaking world and elsewhere, first arose in England when technological and social changes, perhaps inevitable, threatened to make the king (or, to say the same, the government) over-powerful. Those who take the side of the king and government in this centuries-long struggle were called at times and places Royalists, Cavaliers, pre-modern Tories, Progressives, Socialists, or even, bizarrely as they are in today’s North America, Liberals—all of these terms map onto each other with reasonable, if imperfect, accuracy. Those who took the other side were called at times and places Anti-Royalists, Roundheads, Whigs, Liberals, or, equally bizarrely, Conservatives.This does make it particularly galling to hear the most successful leader of the Royalist side in the U.S. history denouncing the resistance as Economic Royalists.

As this struggle began and continued, one of the most common and effective rhetorical tropes embraced by many on the Anti-Royalist side was the idea of Ancient Liberties. The king and government may be ordained by God, but everybody else has rights guaranteed to him by law—be it an ancient Germanic practice, Magna Carta, or something else. The king’s legitimacy depends on his respect for this law and the rights it guarantees. Should he egregiously violate them, it is not merely the right, but the duty, of the people to depose him.

This idea, while embraced by many a Whig lawyer and orator,The greatest of the Whig lawyer historians, and the author’s hero, Macaulay never countenanced it. was thoroughly demonstrated to be false by Prof. Butterfield and others. That is one reason that the accusation of Whiggery is considered an insult among professional historians.The other, of course, being the near-unanimously Royalist sentiment among modern historians.

For indeed there had, for most of English history, not been any law to which the king and government felt they owed obedience. Rather, there had long been a situation quite similar as would have obtained if there had been such law and obedience and a myth, publicly embraced both by ruler and ruled, that there really was such law and practice.

The actual reasons were altogether different for then, as now, rulers do whatever they want and believe they can get away with. The reason English kings committed relatively little misconduct was that they rightly felt that they could not get away with much. The king was merely primus inter pares among the great magnates, who in combination possessed far great military power than the king. Other groups (e.g., the Church, the City, the gentry) too each collectively possessed substantial independent power which, should the need arise, could be turned into military power. Even so determined a king as Henry VIII must have painfully realized every time he visited his capital in peacetime that he had fewer men-at-arms under his command than the Lord Mayor did, and so was militarily at his mercy.

Each of the other magnates and groups took a rather firm view of its own inviolable prerogatives. Should the king trample enough on these prerogatives of sufficiently many of the other magnates and groups, he would soon find himself in an unpleasant situation. John I Lackland was neither the first, nor the last, English king who learned this lesson to his regret.

So it is not hard to see how both king and the resistance came to embrace the myth of ancient liberties and law. To the ruled, it is more comforting to think that they are protected not merely by the unpleasant threat of resort to large-scale violence, but also a higher principle independent of the capacity for such violence. To the ruler, the question of why he did not engage in some conduct he appeared to desire, is answered with greater dignity by the claim that the king respects the law and other’s rights, than by the more honest admission that he fears being made a head shorter should he so engage.

So when the aforementioned technological and social changes occurred, starting about around the sixteenth century, the consequences were predictable. All over the continent rulers seized the advantage offered by finally being militarily more powerful than any potential resistance to dispense with the hated fiction of being bound by law or rights and quickly made themselves absolute. The archetypical illustration of this phenomenon is of course Louis XIV, but similar events took place all over continent with consequences that the author, being an ardent Anti-Royalist and Whig, regards as extremely regrettable.

Only in England were the Anti-Royalists able to put up any effective resistance. Their advantages, compared to their less fortunate brethren across the English channel, were the early warning of the danger offered by the brethren’s fate at the hands of their newly-empowered rulers and the English channel itself. For the English Anti-Royalists were on an island without any substantial military threats. So they could afford to grant the king only a Royal Navy, which was a threat only to foreigners, but not a Royal Army,Indeed this is the reason that the United Kingdom to this day has a Royal Navy, but only a British Army. which could have been effectively deployed against them.

So it is unsurprising that the great debates about the power of the purse, standing armies, and ship money leading up to the first military chapter of the Great Schism, the English Civil War, were all about keeping the means of acquiring a Royal Army out of the king’s hands. While many were too polite to say so, the leading lights of both sides were well aware that the underlying conflict was about whether parliament was going to give the king a sword which surely he would use against the people.

The events of the ensuing century—the English Civil War, the execution of Charles I, Cromwell, the restoration of Charles II, the overthrow of the Stuarts and James II by William of Orange, the Glorious Revolution, the passage of the English Bill of Rights, and the installation of the Hanoverian dynasty—were, on the whole, not unreasonably seen as a victory for the Anti-Royalists.

The Anti-Royalists admittedly ultimately gave up the dangerous sword to the king, but they also managed to bind him in a most-ingenious trap. For should William or any of his successors ever be tempted to throw off the shackles of the law and make themselves absolute, they would also implicitly concede their illegitimacy. For the Hanoverian’s legitimacy crucially depended on the fact that a king may not make himself absolute; if the king may, then the Glorious Revolution was a lawless rebellion, and the Stuarts, who for a century continued to pose a credible threat of overthrowing the Hanoverians, were still the legitimate kings of England. By the time the threat of a Jacobite Restoration receded, and Jacobins became a more present concern, the myth of English Liberty had become an ingrained fact.

To the modern reader, the conclusion is more melancholy. For, both in the United States and the United Kingdom, the Royalists eventually took up the sword and shredded most of the law which binds governments. The temptation was just too great to be consistently restrained by a mere few centuries’ habit of law. And once one ruler successfully draws the sword, the idea of government bound by law is irrevocably exposed for the myth it is. In the United States, it was Wilson who made the first serious attempt to draw the Royalists’ sword and may have been merely the good fortune of his illness and death that made the situation temporarily seem recoverable. Then FDR took up the sword again and annihilated the Anti-Royalist opposition. In 1937, the last effective Anti-Royalist holdouts on the Supreme Court surrendered.

The lesson is that, under current technological and social circumstances, no people can rely on mere law to preserve its freedom. The history of the U.K. and the U.S. furnishes glorious examples of how the law can seemingly successfully restrain rulers for centuries; yet in the end, the law lost in both places. Only the widely-dispersed capacity for horrific violence, or perhaps technological or social changes yet in their beginning, can reliably restrain rulers.