Charted Waters

This article from the Summer 2020 edition of the IPA Review is written by IPA Adjunct Fellow, Zachary Gorman.

The unique circumstances of the pandemic have seen age-old questions about the rights of the individual and necessary limits on government power thrown into a new and stark relief. Controversies surrounding the American election and allegations of voter fraud have likewise raised concerns over what makes a democracy work, and how to maintain cohesion within a political community. The IPA releasing Summoning Magna Carta: Freedom’s Symbol Over a Millennium—a new book on Magna Carta which delves deeply into the history of these fundamental political issues—in early 2021 will be timely. The Great Charter is humanity’s greatest symbol of freedom, and its story is the essential prologue to understanding the origins of parliamentary democracy and modern legal rights.

Each generation has to fight for its freedom.

The book is the follow-up to Magna Carta: The Tax Revolt That Gave Us Liberty, written by John Roskam and Chris Berg, and released in 2015 for the 800th anniversary of the momentous events at Runnymede. While that volume traced the important link between resistance to arbitrary taxation and the emergence of political liberty, this book looks at the Charter’s broader history as one answer to such fundamental questions as: Where do we find our freedom? How do we protect the rights of the individual against the attacks and encroachments of the state, from tyranny, and from anarchy?

The Great Charter’s answer is that freedom can be found in history and custom, in the time-honoured wisdom of our forebears. Magna Carta was and is a powerful symbol of our collective past, which over the centuries has been repeatedly invoked to demand freedom in the present. It is an incredibly successful example of the Burkean idea of grounding liberty in tangible lived experience, rather than in abstract theory.

History has taught us that each generation has to fight for its freedom. As former US president Ronald Reagan put it:

Freedom is never more than one generation away from extinction. We didn’t pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same.

The American Bar Association built the Magna Carta memorial in Runnymede in 1957 to commemorate the Great Charter as a symbol of freedom under law.
Photo: Antony McCallum

This fragility makes history and custom so important, because in establishing recognised societal norms they offer a way to fortify our freedom. If nations appreciate what has gone into winning liberty they are more likely to recognise its value and protect it from even nascent threats. The roots of successful political institutions—such as those Australians inherited from our British past—grow deep, and this is precisely what allows them to weather storms.

The difference between the success of the American Revolution and the promethean destruction of the French, is that one built on an existing foundation and the other tried to rebuild society from the ground up. Once the French had thrown out all existing anchors to the past, they found they were constructing their tower of liberty on a base of sand. In contrast, the story of Magna Carta is the story of an historical icon constantly being summoned to demand ever-expanding concepts of justice and liberty, growing from the firm basis of precedents found in the past.

William Wentworth, pictured here in a portrait hanging in the NSW Legislative Council, frequently claimed the rights of Magna Carta on behalf of Australian colonists.
Source: NSW Parliament Library

“Every community which has not a free government, is devoid of that security of person and property which has been found to be the chief stimulus to individual exertion, and the only basis on which the social edifice can repose in a solid and durable tranquillity.”
— Statistical, Historical, and Political
Description of The Colony of New South Wales,
W. C. Wentworth, Esq., 1819

At a time when appeals to abstract rights would have been dismissed out of hand, the Barons demanded that King John re-establish the laws of Edward the Confessor and what were thought to be ancient customary rights. They wanted the right to only be levied customary taxes at customary levels, customary justice and a fair interpretation of customary feudal duties, and an ancient right to be consulted on important matters. In turn the Charter would be reinvented by Englishmen of the Stuart era to justify parliamentary supremacy, the Americans to claim no taxation without representation, and the Australians who insisted that the convict stain did not deny them their British birthright. Indeed, the book reveals for the first time how Magna Carta was directly involved in the advent of Australian democracy.

The claims of the Great Charter were predicated on subjective rights.

To explore this theme further, here is an extract in advance of the book’s publication from Chapter 14, The American Revolution and the Spread of ‘British’ Rights:

Beginning in the mid-to-late 17th century, the Enlightenment is generally seen as the moment in which the Renaissance push towards humanism and rational inquiry bore fruit in the spread of science, philosophy, and the value of objectivity. In the realm of political theory this development would help to disseminate the freedoms associated with Magna Carta, while at the same time rejecting the primary impulse that underpinned the document. For the claims of the Great Charter were explicitly not objective, they were predicated on the subjective rights that Englishmen possessed owing to historical specifics like the laws of Edward the Confessor or the ancient constitution.
Core concepts like due process of the law or giving consent to taxation could and soon would be justified on the basis of logic, but this was not what had forced even despotically inclined kings to at the very least pay lip service towards them. The real force of Magna Carta was that the document was grounded in history, with time-honoured reverence given added fortitude by the fact that the English people had shown themselves liable to rebel against or even execute a monarch who repeatedly violated the Charter’s tenets. To this day, it remains a matter of contention whether rights reasoned from the abstract can ever be as secure as those enshrined by a culture and the events of the past. The repeated failure of well-meaning attempts to impose liberal democracy on nations torn apart by war or oppressed by dictatorship suggests that, despite the advances of theory, this historical/cultural element remains significant.
To acknowledge these limitations takes nothing away from the brilliance of John Locke, the Enlightenment’s pre-eminent political thinker. A fierce critic of the Stuarts, Locke did much of his best writing while exiled to the Dutch Republic for his alleged involvement in the Rye House Plot of 1683. He is notable for producing works of genuine philosophy like the Essay Concerning Human Understanding, while his Letters Concerning Religious Toleration echoed and expanded many of the arguments expounded by William Penn. In the political sphere, Locke’s magnum opus was the Two Treatises of Government.
This developed a new contract theory which rejected the idea that, as Aristotle’s ‘social animal’, man was innately political and had to develop political institutions almost as a matter of instinct, or the Hobbesian position that life without government would be perpetual war. Life would certainly be more difficult and even violent without political institutions, but Locke argued that they were not inevitable, that in a state of nature men would utilise their ‘executive power’ of judgement and take it upon themselves to protect their rights. It was this ‘executive power’ that was later given over to create the state. Since government was thus a deliberate ‘artefact’ that had been established for a purpose, if it failed to achieve this purpose the people had every right to oppose their rulers and even create an entirely new system:
Could they be happier without it, the law, as a useless thing, would of itself vanish; and that ill deserves the name of confinement which hedges us in only from bogs and precipices. So that, however it may be mistaken, the end of law is not to abolish or restrain, but to preserve and enlarge freedom.
Locke defined the purpose of government based on a theory of natural rights. The heart of this theory was that man had been created by God and was still in a manifest sense His property. As God’s property man’s central imperative was preserving that property, and this became the basis for a simplified morality. Man could not destroy himself or another human without betraying his creator, hence the first fundamental right was life.
The other fundamental rights flowed logically from this same basis. Liberty was necessary to have the freedom of action required to preserve one’s person. If you let yourself be dominated by another, you risked sacrificing your self-preservation, and this made liberty a natural right:
This freedom from absolute, arbitrary power is so necessary to, and closely joined with, a man’s preservation, that he cannot part with it but by what forfeits his preservation and life together.
The right of property was likewise justified on being necessary to sustain life. Even in an Eden-like state of abundance a man needed to be able to consume food, and as soon as they ate they took something out of the collective goods and made it explicitly their own. They could not wait to ask collective permission from the rest of society or otherwise they would be liable to starve. Locke reasoned that the right to property in such a situation was predicated on the labour expelled picking the produce. Without abundance labour was likewise key to property, for it was necessary to take possession of land in order to grow crops for sustenance and be assured of reaping the rewards.
Locke argued it would be folly for a man to cultivate more than he could utilise before the produce spoiled, hence initially it was impossible that all the land would be alienated. It was only after man invented currency that it became viable to possess extra land and sell the surplus, but since currency had no intrinsic value and was only given such by society it was thus part of the social contract that this had been allowed to happen. The trade-off was that uncultivated land was essentially waste; hence it was only after land was alienated that it gained value in the first place. The result was commerce and a net positive for humanity, for “a king of a large fruitful territory [in America] feeds, lodges, and is clad worse than a day-labourer in England”.
Two other central points flowed out of man being God’s creation. The first was equality. God created man as a free being and did not place any man in a position of authority above another. Men certainly possessed varying faculties and talents, but politically speaking it was only through the setting up of government that any obedience-commanding hierarchy was created. The second was that since man was owned by God and not himself, he had no authority to give away his rights, for to do so would be an attack on his creator. Even suicide was proscribed, and through this chain of logic human rights became ‘inalienable’. Locke thus begat the whole modern discourse on universal human rights which, crucially, precede the existence of government rather than being created by it. This was his greatest contribution to the Enlightenment, though as the later Enlightenment would usher in a process of secularisation, it is a significant matter of contention how much his theory can be divorced from its religious basis and hold together. American political philosopher Michael Zuckert has argued that Locke’s collective works suggested that even he was thinking of God’s ownership of man as a proxy for ‘self-ownership’, and there is no question that they contain considerable enduring utility. Nevertheless, the assumed divine presence made rights binding in a manner that is difficult to replicate without it.
Along with rights, Locke can also lay claim to founding the political tradition of ‘liberalism’. His inalienable rights put the individual at the centre of political discourse and set clear limits on what governments could and could not do. The need for consent to taxation could now be justified not just on the Great Charter, but on the fundamental value of property rights. This meant that the call for liberty was universal, and no longer tied to a specific people and history. The idea that government was set up by the people for their own benefit formed the basis of the claim that the legitimacy of government rested on the consent of the governed. This in turn suggested the need for democracy, even if Locke himself did not insist on it. Locke’s liberalism was also prescient in calling for the separation of the legislative and executive branches of government, lest those writing the laws would have the added power to administer them in their own interest.
While Locke’s legacy is immense, it would take quite a while before his full impact was felt. As we have seen, the Glorious Revolution was the culmination of Magna Carta’s search for freedom in the particulars of England’s past, and the Bill of Rights did not consider rights in the universal Lockean sense at all. Even the idea of the ‘ancient constitution’ was less a contract made at the original founding of government than it was a creation of ‘time immemorial’, where the act of establishment had faded into the mists of the past, producing an inalterability that was seen by its proponents as a positive. With a general sense of relief that England’s constitutional situation had finally stabilised, giving way to an enduring national pride in a successful status quo, this line of thinking would remain dominant throughout the 18th century.
Magna Carta replica on display in the Crypt of the US Capitol, Washington. The Great Charter’s principles underlie much of the US Constitution.
Source: www.aoc.gov
For a long time, even those radical Whigs who continued to express dissatisfaction with the revolution settlement tended to look past Locke, and base their case in classical republicanism, Algernon Sidney, or Hugo Grotius, an earlier Dutch political theorist generally seen as a pioneer of the social contract, but whose arguments differed significantly from Locke’s. Grotius saw government as a necessary by-product of man’s social nature. He limited the circumstances in which it was permissible to resist and particularly to remake government, and while he pioneered individual rights these were not inalienable.
With a constant flow of people, goods, and ideas going back and forth across the Atlantic, the new American colonies absorbed this political culture. American journals were liable to reprint English articles verbatim, particularly if they inclined towards the Whig perspective which was naturally favoured among the varied Protestant Dissenters who had sought refuge there. One of the reasons why colonists cared so much about English politics was because they were convinced that they were entitled to the same liberties as their trans-Atlantic compatriots. As was the case with Pennsylvania, most colonies had promised settlers that they would have all the rights of Englishmen, and these promises were generally incorporated into founding charters.
For example, the 1606 Charter of the Virginia Company declared that every subject of the king and “every of their children [born there] shall have and enjoy all Liberties, Franchises, and Immunities … to all Intents and Purposes, as if they had been abiding and born, within this our Realm of England.” Similar guarantees were given to the people of Maryland, Connecticut, Carolina, Rhode Island, Massachusetts Bay, and Georgia. As always, Magna Carta was at the centre of how the colonists understood these ‘English’ rights.
Many constitutional documents incorporated elements of the Great Charter, particularly but not limited to the protections for due process. In 1684 the New York Charter of Liberties and Privileges based the right of the colonial legislature to control taxation directly on Magna Carta, foreshadowing the demands of the revolutionary war. Though the other colonies were less explicit in citing the Charter on this point, they too set up colonial legislatures to take on the fundamental role
of giving consent.

God created man as a free being.

As I show in the book, very similar arguments were used to demand responsible government for New South Wales in the early colonial period. Understanding the historical and global context enriches Australian history, and puts the focus squarely on the fundamental rights for which so many generations in so many countries have repeatedly fought.

Summoning Magna Carta