The French Revolution

For many people the French Revolution began in 1789, for the English however it began 723 years prior and lasted for 622 long years before it was finally brought to a conclusion. Consequently, the French revolution was over a whole century and a year before their domestic one began; some people never learn.

In 1066, disregarding all that had gone before as irrelevant, William the Conqueror came ashore and, defeating the battle worn Harold in a field of East Sussex, proclaimed himself King. All that was formerly someone else’s was now his by right of conquest. At this point in time, the entire population, no exception, are enslaved to the king. This enslavement, expeditiously named the feudal system, is marked by tiered servitude under which each level submits to the will of its liege lord with the monarch reigning supreme, though he and more latterly she, nominally at least, answered to God.

James the First (King of England & Scotland, 1603-1625) admirably espoused the position in his 1609 address to Parliament. He spoke to a problem which dogged all those who ascended to the throne from William down; ruling and how to get away with it. In this speech James admits that he fashions chess pieces of his subjects and that he may have a pawn take a bishop or a knight, yet glaringly fails to acknowledge how that pawn may also take a king, though history, both local and biblical, is replete with such events; It’s really a question of man management and, relying upon a claim as to your divinity will only go so far; a point that his successor would have done well to have paid more attention too. Still, James, in admitting that as King and with his prerogative in hand, may do as he damn well pleases, in doing so, notes how he is best served by ruling within the limit of the law, else he degenerates into a tyrant and, though he rises to call forth the curse of God upon his head in such a case, it is, in truth, an altogether more earth bound entity to whom he will find himself answerable. A fact that all governors, howsoever titled, are scrupulously careful in avoiding admitting.

It is not by chance that James is speaking to Parliament, nor in this manner. He was defending his divine right to govern in accordance with his will. Parliament is a creature of invention that had come about solely on account of those other kings, who, it is likely James would have asserted, had governed less conscientiously than he himself intended. Parliament had wrought its eventual existence from the banks of the river at Runnymede in 1215 and the Magna Carta that flowed from that meeting with a crestfallen King John. Whatever you may make of the Magna Carta, it was and remains to this day, the first agreement that restrained the King, the unarguable evidence that the head honcho was subject to a quid pro quo; divinity having finally met the road and kissed the one true ring of power; agreement.

That moment, 1215, marked the very beginning of the written constitution, government by agreement. A but of immense proportions; the incontestable truth that states; but for this, agreement, you do not remain. And so it is to the rule book, a written thing, as kings may not be relied upon to be so gentlemanly as to keep their word, upon which, henceforth we could rely. Problem number one. The King is Dead; no bother, here’s another.

Things are nascent.

It is possible to glimpse the kernel of a thing, which is not to say that you get a bite of it; good work requires a little bit of patience and the best work takes generations. And so it is with the constitution. It is, like all the best stories, a thing which is more than the sum of its parts and its parts lie scattered about, some clear and obvious as too intent, whilst others appear wholly accidental and then yet more parts which speak to neither accident nor intent, but are woven into the tapestry all the same.

And so from the absolute to the relative. That first king with his sword law engaged in man management, distributing some of that which he had taken in order to maintain control of those who had assisted him in this ascent, the first quid pro quo. The hand me down of this brutal maintenance finally fell to John who, in dire straits, as it’s always about the money, assented to what would eventually evolve into Parliament. But do not think Parliament is what it presently pretends to be, it is nothing more than the site at which you, through your representative, negotiate the terms of your ongoing surrender. And strength of hand is all important else how would the Great Charter of 1215 have come about and consequently the requirement it placed upon the king to obtain the consent of the kingdom through a common council in order for him to levy his taxes.

It’s a question of recognising cleavage, had the first king not paid in kind from the treasure he took then it is unlikely that his new won title would have persisted. That bond of interest bound each level to serve its master, but then, when the master demanded too much of his liege, that liege, smelling weakness, extracted that which they might, ever careful to not topple the castle itself; a judicious balancing act of mutual interest, a cleave toward the practise of an oligarchical collectivism, that is to say, a gang of thieves, expressed first through that council consisting of the bishops, abbots, earls, and greater barons.

And so it continued with each new king, only now forever weakened by that first agreement, bound by newly forged custom to consent to those terms, give or take, first settled at Runnymede.

It is 1256 and now, buttressing that first high titled council are the burgesses from the cities and boroughs alongside the knights who represent the counties. Everyone who was anyone (and most of the people were yet not), wanted to have a hand in the preservation of their ill-begotten pie. This is the feudal system, not in theory but in practise, a service contract from the top-down, a management of spoils and, rather than having everyone involved in the preservation of their part participate, you would send a representative to protect your slice from the avaricious king feasting at the top. In short, you would send your man to negotiate any taxes, to represent and protect your interest, which is to say, only the landed had need of this protective representation. As the Americans somewhat later would formulate, no taxation without representation, or yet more succinctly, without agreement. That is the original purpose of parliament and the representative you send there; to negotiate the terms of your agreeing to surrender back that part of your sordid inheritance to whom for you, and you alone, is simply the greater good; a thorough perversion of a self preservation society where each is simultaneously hostage and captor; heavy is the crown no matter how delightful the trappings.

Let us, much like the monarch could and did, leave Parliament at this juncture, simply recognising that its rise to power was inversely correlated to that of the monarch. A power only truly manifest on those occasions when the monarch had sore need of that ignoble institution which exploited those occasions to lurch larger through its grants of money. This was not some high-minded place wresting power for the people but an extortion racket predicated on a protectionist racket that sought only more of that which the monarch would have claim as his entirely; the commons wealth; which is to say, at this point in time, not just the land but all that it may produce on the back of what is largely little more than slave labor. Still, there was another, singularly more important matter moving in the weeds; the rule of law.

“The rule of law is a fundamental principle that ensures all people, including government officials and businesses, are accountable to the law. It means that no one is above the law and that the law applies equally to everyone, regardless of their status. This principle is essential for the development of peaceful, equitable, and prosperous societies.”

The above, including emphasis, was returned by the web browser when asked the question; ‘what is the rule of law?’ Obviously we live in enlightened times.

Let us turn again to the Magna Carta of 1215 and a distinction it grants.

This is taken from clause 16 of the original 1215 version, there are other clauses which speak to law as being something other than the express will of the king but this is the most pertinent given, firstly, what it states and secondly, that this clause was re-affirmed (as clause 29) in 1297 by Edward the First when the Magna Carta was first enacted into statute law to which it was, in the Confirmation of the Charters admitted to being the Common Law.

I am going to shorten clause 16 for the avoidance of doubt, likely as the bishops, abbots, earls, and greater barons, clearly saw it necessary to do the opposite back in 1215.

“No man shall be […] in any way harmed, […] except by [.] lawful judgement […] or by the law of the realm.”

Now for the sake of completeness copied below is how clause 16 of the original Magna Carta found its way onto the statute book in the 1297 version which is still current and enacted.

I want to focus for a moment on that last sentence as it speaks to the evolving nature of what it meant to be the monarch. It is reasonably certain that those early kings would have not admitted then to that, which by 1700 and the Act of Settlement, had become the people’s birthright;

To which we add, from the Coronation Oath Act of 1688, the monarch’s promise number 1 and 2 (of a grand total amounting to 3);

1. Will You solemnely Promise and Sweare to Governe the People of this Kingdome of England and the Dominions thereto belonging according to the Statutes in Parlyament Agreed on and the Laws and Customs of the same?
2. Will You to Your power cause Law and Justice in Mercy to be Executed in all Your Judgements.

And so, from 1297 onward, by virtue of that last sentence of the 29th clause, the Monarch, in both statute and common law, can not resist anyone in seeking justice to any harm that either the monarch or their agents have unwittingly, as they always act unwittingly, caused (nor, incidentally should your seeking justice come at a cost; We will sell to no man…; a thing which is seemingly lost on the legal profession). From the people suffering the divine right of the monarch to the monarch suffering the administration of the peoples law and justice in a little over 600 years, to which turnaround we owe all the above and a few bits more in between.

A word on harm.

A general understanding is that the common law boils down to doing whatsoever you want save that which causes another harm. This understanding may, or may not be derived from John Stuart Mill where, in ‘On Liberty’, he iterates the idea that power may only be rightfully be exercised over a person when their actions harm another.

I would substitute the word ‘power’ in that sentence with ‘law’ and in that manner we get a little closer to a better understanding of things.

It is trite to suggest that you may not do that which you have done. In so much as you have already done it; what matters is what happens next. It is the second part to the mantra that we are all equal under the law and that no one is above the law that is of primary importance. That no one is above the law should really come first in our collective understanding as it is that, accountability for our actions, to which we all, king and peon alike, submit;

“….the King had no prerogative, but that which the law of the land allows him.” The Case of Proclamations [1610] EWHC KB J22

Without which submission you would find yourself without law and the remedy to harm it proffers upon all. So, rather than understanding the common law as doing whatsoever you want save that which causes another harm, it is more accurately understood as your obligation to perform remedy for any harm you cause.

That is, responsibility; a not unreasonable price for freedom.

It also squares the circle as to what constitutes harm, a thing which, until proven otherwise, is unknowable. As such all law is wholly reliant upon another and the bringing of a claim.

Breaking it down. I am born, there are no constraints placed upon me, I am not conducted thence into this place in which I must do anything other than that which I do. Leaving aside the question of dubious parenting I go on to do whatever I want until eventually my actions bring about a re-action. Somebody other than me is none too happy that my action has gotten in the way of theirs. Consequently we have a fight, this is all too familiar I believe. That fight is broken apart by what we shall, for the sake of it, call a judge, who, being somewhat larger than the two raging bulls holds them at bay until such a time as tempers have cooled. The peace has been restored but the dispute remains. The judge affords each party the opportunity to present their case and weighing the evidence presented determines who is at fault for the breaching of the peace (the harm) and must perform remedy (for the most part this is achieved, at this particular juncture in our young lives, by performing that which we are all generally loathe to do, and apologise).

That is law in a nutshell. We are at peace (going about our business) until an interaction interferes with that; a breach of our peace which is the harm. We have two options at this point. Either allow that breach to persist, permit the action of the other to go unchallenged or restore the peace by resolving the interaction through a reasoned judgement. Remember it is you acting freely in claiming a harm through having had your peace (whatever you were doing) interrupted. This is a two-way street, you have now breached the other parties peace (their business is now interrupted) as they will now need to submit to a third party that their actions, which you are claiming as harmful to yours, were not.

This is key. We all act righteously, we are not aware of our causing a harm, else that would constitute a crime; to cause harm knowingly.

The judge weighs the argument and delivers a judgment. This judgement between two parties forms law between them, a remedy for the harm, now identified and so knowable to both. It is in effect an agreement, to correct for and subsequently modify (stop) behaviour that we now know to have been harmful; an altogether rather grown up way of behaving. If that newly articulated law is applicable to all then it is a common law.

When it is a matter between children the judge invariably takes the form of the parent, when it comes to the people, then, in the final analysis that dispute will ultimately, should it prove necessary, find its way to the top magistrate, his majesty, the king.

The reason for this detour into harm and then into law is to get to a fuller understanding of common law and what it was that King Edward did, wittingly or otherwise, in codifying Magna Carta 1297 by entering it into statute (parliament) and subsequently, through the Confirmation of the Charters of the same year, also codifying into statute that it, the Magna Carta is the Common Law; that his agreement is applicable to all people and in placing it on the books (statute) will bind all future kings unless expressly revoked.

It has already been shown how one cleavage from the untrammelled power of the king was the agreement for the council in 1215 that would later evolve into parliament. Specifically, the Kings prerogative to raise a tax was forever then subject to the consent of council, howsoever called. Though important, in so much as it underscored that the power of the monarch is subject to limitation, it is the second cleavage, the supremacy of law, which, though considerably slower in its evolution, is fundamental if we are to truly understand what, when the yoke of the first French revolution was finally overthrown, then remained.

‘Auntient Rights and Liberties’

I for one have absolutely no idea what they were talking about but there it is, written all the same. For the majority of people who have no idea what they are talking about either, this is what the 1688 Bill of Rights claims as its reason for being, proclaiming that the contents of the Bill to be the best means for attaining the ends (the Rights and Liberties of the Subject). Yet at no point does the bill define what those ancient rights and liberties are, beyond a few specific bugbears of the time, which seem to be eerily similar too many peoples bugbears of the present time; mistakes my father made and all that.

The lack of particulars is however the point; the Bill of Rights was a far more intelligent document than the Magna Carta, it did not, unlike its older sibling, seek to be some sort of all encompassing list of restraints; the extensive shit list that is the Magna Carta which was almost wholly irrelevant a few generations later; no, the elegance of the Bill of Rights rests in its recognition of the primacy of law, as advanced by the people bringing claims as to a harm caused by the king through his governing to the court and that we are all, including bodies corporate and unincorporate, subject to the common law that is born from that claim. It is that, our untrammelled ability to remedy harm through our application to law that is the constitution, everything else, including parliament is, to a greater or lesser extent, decorative.

What am I talking about?

A couple of things happened between the 13th and the 17th Century. Some people might argue that there were a few more, but for me, the regal vicissitudes that, in chronological order, plagued the Angevins, the Plantagenets, the Tudors and finally the Stewarts do not account for their ultimate submission to the law. That is down, ironically for me at least, firstly to the Black Death and then secondly and, ultimately more profoundly, the printing press.

There is truth in the phrase that whatever doesn’t kill you makes you stronger. The devastation of the population ultimately destroyed the feudal system, although it remains (to this day), its power, a series of obligations predicated on theft, began to drain until it formed little more than an empty vessel, all pomp and ceremony. The base that fed the whole was, through its evisceration, empowered and those that survived gained weight and in doing so, broke free of the chains that had held them in their place. They rose in importance, firstly by necessity and then more latterly, through knowledge. Those early kings would not have conceived of this loosed population and the questions that they, in rising from their knees in the mud, would begin to ask, and ask with an earnestness that flowered during that tumultuous 17th century which opened with James declaring to parliament that he was as God on earth and closed with his twin running back to France some 79 years later and in doing so, closing the door on that revolution that had begun with William so many years before.

That the next turn, the next cycle, that last and glorious revolution, only this time warmly invited, opened with another William is apposite, to say the least. This was the high point of the 17th Century and it took our collective blood, sweat and tears to get there. Without James the first, without Charles the first, without civil war, decapitation, that first republic and its seemly reticence, a restoration and the final insult of a monarch reverting to form, it is impossible to speak as to what may have come to pass. Events are what they are and in them lay the genesis for a collective memory striving to correct for the mistakes of the past and henceforth the king may no more command me than I him and if that is not the case then it must be law and in which case it will be found in our books. Failing that, no king or queen nor their government or that cesspit of statute streaming forth from parliament can command any one of us. And yet that does not, nor ever would, stop them from trying, a foul and abusive custom whose continuance we, the people, hold full responsibility for, as it is our collective fault in our not, without fear, fully exercising our birthright, that inheritance of inheritances, law, through whose means we can only truly attain the long promised ends; freedom.