Chapter 4 - The Irony of Rights
Stay out of our government, stay out of our courtrooms, and let us deal with our own taxation—it was simple stuff, really. There was no point pretending to having laws and freedoms if the king could take them away any time he wanted. The Magna Carta was written as if written by John I, albeit by a gang of barons with a sword at his throat, and by signing it he excoriated royal totalitarianism and subjugated himself to the law. However, just because John I was the king that broke the camel's back doesn't mean the perpetual and cyclical abuses of royalty hadn't been rotting in the minds of the English people for centuries. In many ways, this was just a philosophical extension of his grandfather Henry II’s Constitutions of Clarendon of 1164. They came about because the Catholic Church, i.e. the Pope, had eroded royal authority by establishing a separate set of ecclesiastical courts for naughty priests. Naturally, Henry II was not a tremendous fan of the idea.
Unlike John I who had been an absolute tyrant, Henry II had every right to be pissed off above and beyond being neutered by ecclesiastical legal authority. Pope Alexander III had ascended to the office largely because of Henry's influence, but now Alexander was using the power of ecclesiastical courts to skirt English civil law by removing murderous and lascivious priests from the royal hand of justice and just rapping them across the knuckles with a ruler. Generally speaking, the people respect whoever controls their heads, and a king who can't enforce the laws is no king at all. Royal authority gradually eroded in all aspects as a result.
In response, Henry passed the Constitution of Clarendon, a list of Sixteen Articles requiring the following of the church:
1. Keep your religion out of our government
2. Don't drain our wallets
3. Don’t screw with the legal system
A few years later, Henry appointed his dear friend Thomas Becket—unfortunately, it would turn out, also a friend of Pope Alexander III—Archbishop of Canterbury, with the idea that Becket would be a check against the papal influence. Unfortunately, Becket took his clerical duties a little to seriously and defied Henry in favor of the Pope. The torments of this resulted in Henry's famous line "Will no one rid me of this meddlesome priest?", prompting a few of his loyal knights to happily oblige. Although Henry had to subject himself to ceremonial lashing by Pope Alexander to get right with God, generally speaking, the people respect whoever controls their heads, and a Pope who can't enforce the laws is no Pope at all. Despite the disciplining—no doubt an embarrassment for Henry— it was ultimately a small price to pay in the name of English justice.
Historians tend to blame the church encroachment on English law on Henry's father Stephen for being a weak king. Although it certainly didn't help, realistically, that's like blaming your hemophilia on Czar Nicholas II rather than whoever started marrying their cousins in the first place.When Henry's grandfather-in-law William the Bastard defeated the Saxon king Harold Godwinson at Hastings in 1066, he became William the Conqueror. Naturally, a few changes were to be expected, and all that was requested in return was that William:
1. Keep your religion out of our government
2. Don't drain our wallets
3. Don’t screw with the legal system
The problem is that England wasn't quite as casual as Normandy when it came to religion and royals. St. Augustine (not the one you're thinking of) had arrived in England in 597 C.E. and converted King Aethelbert of Kent to Christianity. Naturally, Aethelbert would have to acquiesce to the appointment of a new Archbishop, and Canterbury was chosen as the seat of the church in England. To this day the Archbishop of Canterbury occupies what is known as The Seat of St. Augustine.
For the next 300-odd years the wriggling maggots who controlled various parts of England set about slaughtering each other, and it wasn't until Alfred the Great in 870 C.E. that the first true line of English kings—the House of Wessex—would be founded. Alfred the Great defeated the Vikings, forced their conversion to Christianity, and then turned his attention to law. He expounding on the work of Aethelbert of Kent, and jerry-rigged a legal chronology back to Moses to make it appear as though they were divinely sanctioned. Thus, the trinity of God, king and country were consolidated.
In truth, the code was a self-contradictory mess, which probably lent credibility to its Biblical origins, but its execution—often adjudged by Alfred himself—established the fundamental principle upon which all English law would rest: contract law. The first entry reads "We enjoin, what is most necessary, that each man keep carefully his oath and his pledge." Building upon his Anglo-Saxon predecessors, the land now had a legal system fully consolidated under one ruler, and English society would be structured around writs and paperwork forevermore, provided the rest of the world would:
1. Keep your religion out of our government
2. Don't drain our wallets
3. Don’t screw with the legal system
Figuratively and literally, this was all foreign to a Norman like William, so it was a bit of a shock when his plan to divide up the country with his friends resulted in angry feudal lords waving legally and spiritually binding ancient writs in front of his nose and shouting that their divinely backed "rights" superseded the fact that he had plonked down a Norman flag. The fact was, by basing his legal code on divinity Alfred the Great had inadvertently established the precedent that English law derived its authority from God and not the king. In other words, justice is determined by the adherence of the king to laws and writs, not tinkering with them at his pleasure.
Worse, England was already broken into many locally governed and taxed counties, and all the new feudal appointments created problems with the established locals and common law. As a result, until power was finally consolidated, several rebellions and revolts arose on the general grounds of one or more of the following:
1. Keep your religion out of our government
2. Don't drain our wallets
3. Don’t screw with the legal system
William finally decided it was time to strike a deal. As Jefferson points out in A Summary View of The Rights of British America, “still much [land] was left in the hands of his Saxon subjects; held of no superior, and not subject to [William’s] feudal conditions. These, therefore, by express laws, enacted to render uniform the system of military defence, were made liable to the same military duties as if they had been feuds; and the Norman lawyers soon found means to saddle them also with all the other feudal burthens.” The only piece of the puzzle missing was the divine sanctioning of the Church of Rome.
As luck would have it, the initial rallying cry for rebellion amongst the Anglo-Saxons had been that Harold Godwinson had sworn his kingly oath on relics rather than being sanctioned by the Pope like all the other kings since Aethelbert of Kent. In 1070, William granted the legality of the land holdings of the extant Earls and confirmed the positions of the standing bishops in hopes of easing the transition of power. Everyone was happy, and he was coronated on Easter Sunday in Westminster Abbey by three delegates of Pope Alexander I.
He was now free to organize his new kingdom, and the great achievement in this regard was the compilation of the Domesday Book in 1085 near the end of his reign. It derives its name from the fact that, once the census had been taken of land, titles and tax burdens, the book was deemed the final authority for all disputes. Once and for all, the written word would be king.
The irony was, had William's uncle Edward the Confessor, King of England and son of Emma of Normandy, spent a little more time respecting those writs in the first place, William would never have had to deal with any of it. Edward had intended him as his successor all along. However, Edward lost his crown when his brother Tostig faced a rebellion in the lands he held in England. To be fair, the locals had a lot to bitch about. Their complaints may be broadly sorted into three categories:
1. Keep you religion out of our government
2. Don't drain our wallets
3. Don’t screw with the legal system
Among other things, Tostig imposed “enormous taxes which he had unjustly levied upon Northumbria”, and “punish[ed] wrong-doers more from a wish to confiscate their property than for love of justice”. Combine that with the fact Edward had already pissed off the whole country by refusing to appoint a local as Archbishop of Canterbury, he couldn’t find anyone to help suppress the rebellion, including Harold Godwinson, who would take the throne.
It might seem strange then, for Edward to have the monicker “the Confessor” given the fact that he basically screwed his own country out of having one of their own seated in the highest religious diocese on the island, and he certainly didn’t confess or apologize for it. In fact, he wasn’t well liked until Henry II convinced Roland of Siena that he could make him Pope if he made his grandfather the first (and only) canonized English monarch in history. Roland agreed, and in 1159 he assumed the office as Alexander III.
The conflict of land, money and religion would percolate until John I was forced to sign The Great Charter of England—the Magna Charta—as a legal and social extension of the principles of the Domesday Book backed by the fledgling House of Lords. Things went tolerably well until his grandson, Edward Longshanks of Braveheart fame, having violated the sacred covenants, had to sign the Confirmatio cartorum, a document reconfirming the Magna Carta and its companion document, the Charter of the Forests—a charter as significant for property law as the other was for contract.
Constant war with the Scots had required Edward to levy ridiculously high taxes against the laity, flagrantly violating the terms of the Magna Carta granting the approval of all taxes to Parliament. Besides that, he ran into trouble when the nobility requested he make good on the terms of the Charter of the Forests. Fortunately, so he thought, he was able to escape the problem of the Charter of the Forests by obtaining a Papal bull, thus divinely absolving him of his responsibility to uphold his legal duty. Ultimately, everyone was pissed off for one reason or another, any or all of which being:
1. Keep your religion out of our government
2. Don't drain our wallets
3. Don’t screw with the legal system
Life goes on, of course. His grandson, Edward III, is largely responsible for starting the Hundred Years War, in which all religious, financial, and legal order went out the window over who controlled England. Joan of Arc was burned for her second charge of heresy—cross-dressing, oddly enough—which she did in order to make it harder to get raped in prison. By the time all this was over, the reign of the Tudors began, and King Henry VIII invoked the doctrine of The Divine Right of Kings, stating that the king was appointed by God and answered to no Parliament, Pope, or man. This set English rights back about 300 years, but if nothing else a people that have tasted freedom and justice do not easily forget its flavor. It would take another 150 to get the ship righted again by James VI of Scotland who, upon becoming James I of England to issued the Charter of Virginia to the first English colonists of the New World.
The promise of the charter seemed ideal. With the exception of an occasional message and some gold, James I was perfectly happy to afford them three simple, practical requests:
1. Keep your religion out of our government
2. Don't drain our wallets
3. Don’t screw with the legal system