In the latest in a series of essays on the philosophical questions that underpin politics, grassroots assistant Kieran Neild-Ali reflects on the history of liberty in England.
"Our liberty is neither Greek nor Roman; but essentially English. It has a character of its own - a character which has taken tinge from the sentiments of the chivalrous ages, and which accords with the peculiarities of our manners, and of our insular position” - John Timbs (Ed). English Liberty. The Mirror of Literature, Amusement, and Instruction, 1828.
Woven into the fabric of English history is a commitment to the tenets of liberty. There has been a constant struggle between kings and parliaments over the claim to be the source or the voice of liberty in England; most conclusively and violently embodied in the seventeenth century’s Civil War.
Rather than returning to the rancour of civil strife, we can unite over perhaps our greatest achievement - English liberty. Generations have enjoyed its protection and fought valiantly to defend it, and it has been our single greatest export. It has inspired nations to seek independence from tyranny, establish constitutions that protect freedom and allow everyone to live under the rule of law. And of course, it has established the philosophical basis for economic freedom and lower taxes. Our national Saint’s day is the perfect time to explore where this all came from.
English liberty did not start with Magna Carta, but it was an early moment of seismic significance. It is a totemic and oft-referred source of our protection against tyranny and arbitrary rule.
The Magna Carta was famously signed between King John and his Barons in 1215. It promised the protection of church rights, protection from illegal imprisonment, access to swift justice, and limitations on taxation and other feudal payments to the Crown, with certain forms of feudal taxation requiring baronial consent. A cornerstone of English liberty was firmly established: no taxation without representation. This required popular consent by a conciliar government assembly of barons, a prerequisite to the parliamentary tradition we have today.
The 1215 charter also established other fundamental freedoms from an arbitrary state. The principle of habeas corpus is located in clauses 39 and 40. No Englishman may be imprisoned without trial by their fellow peers in a court of law. The presumption of innocence pending conviction is also located in the Magna Carta.
The Magna Carta has a lasting legacy which has informed the constitutions of liberal democracies across the world. That is the idea that no one, not even the government, is above the rule of law. The Carta established that rules are no longer the will of the monarch, but bound everyone, from the peasant to the king himself. It is for this reason that the United States holds a copy of the Magna Carta permanently in the Library of Congress.
The influence of Magna Carta is not just in the original document alone. Revisions and affirmations by Henry III and Edward I reflect the struggle between the nobility and the monarch over the rights and liberties of the people, but ultimately highlight the need for monarchical power to be constrained and for kings to be compelled to cooperate with the political nation. The Petition of Right 1628 was a key moment in the affirmation of the traditions of the Carta, establishing a commitment to affirm the constitutional balance between the rights and liberty of Parliament and the prerogative of Charles I.
Englishmen have long-believed that the Magna Carta is the codified preservation of the ancient constitution which has, since saxon time, preserved freedom. 17th and 18th century lawyers like Sir Edward Coke spent their whole lives trying to prove that English liberty and the ancient constitution pre-dated the authority of monarchs. They saw the Magna Carta and the 1628 Petition of Right as a piecemeal affirmation of liberty and freedom that was, by its nature, a collection of precedent and tradition which was common to all the people of England.
The Common Law
Common law is an integral part of England's liberty. For 17th century lawyers, the common law was the embodiment of the ancient constitution because it proved law did not derive its authority from monarchs. Common law is ‘unwritten’ and based on judicial precedent and history. Royal prerogative and royal statute were a product of Norman rule, but the common law descends from traditions and principles that date back deep into the first millennium AD. English common law contrasts with European civil or “Roman” law. Roman law is made up from authoritative and explicit legal codes developed over many centuries. Various countries have adopted similar legal systems, each with their own sets of laws.
English common law might be considered a textbook example of the importance of a legal system in the moulding of a nation's character. Roman law depends on authoritative codes that are ridgid and based on the times and circumstances in which they were enacted. This means bad laws are likely to exist which have no relevance to the people now. Common law however relies on the upkeep of precedent in judicial decisions. Bad precedent that is not fit for the day will be dropped and good precedent reinforced in case law. This ensures the people of England are governed by good laws and not by dead societies.
Our legal system is synonymous with our form of liberty more generally. England has a form of negative liberty, defined by Sir Isaiah Berlin in his Two Concepts of Liberty, as an absence of interference within a person's sphere of action. The English are free up until the point of the law and may act freely until they break the law. Benjamin Disraeli commented on our negative liberty in 1875 in an address to the Commons:
“Permissive legislation is the characteristic of a free people. It is easy to adopt compulsory legislation when you have to deal with those who only exist to obey but in a free country, and especially in a free country like England, you must trust to persuasion and example as two great elements, if you wish to affect any considerable change in the manners and customs of the people”- Hansard, June 1875.
Other nations have the rights and liberties of their citizens defined and written in a constitution and code of law. European philosophy has been distinctly contractarian, requiring citizens to participate civically like the ancients. This liberty, however, is combined not only with a disregard for the virtues of private life but also with “the complete subjection of the individual to the authority of the community.” It is this philosophy of positive liberty which inspired the founding of the French Republic. Arguably, our concept of negative liberty underpins a fundamental desire for lower taxes and a small state, limiting our liberty as little as possible.
The rights and freedoms of England have been vested in the supremacy of the House of Commons for centuries. The Great Council established to hold King John to his promises made in the Magna Carta evolved into the Parliament of England. Whilst the common law might be fundamental to the application of historic liberties, it is thanks to our sovereign Parliament that the people can decide their own future and explicitly change laws as they see fit. This is probably the greatest liberty of all.
The political influence of the Commons originally lay in their ability to grant or restrict taxes requested by the Crown, a role that at the TaxPayers’ Alliance we would like to see taken more seriously today. Its role grew under the reign of Edward III with the financial demands of the Hundred Years' War, requiring the nation to contribute to the king's war chest. This power was consolidated in the Tudor age and came to challenge the prerogative of monarchs in the reign of the House of Stewart.
The Commons has historically been the defender of the interests of English taxpayers. It has refused to grant funding to monarchs, keeping a tight hold on the nation's purse. It’s why, even today, the government budget must pass through the Houses of Parliament for a government to be allowed to continue in office. Parliamentarians have impeached ‘evil counsellors’ and defeated monarchs when they have overstretched their authority. Charles I’s imposition of ship money was declared illegal by the Long Parliament in 1640. Ship money was levied without the consent of Parliament, breaching the Magna Carta. When James II used his dispensing power to circumvent existing laws, Parliament ensured that similar abuses of royal prerogative could not undermine English liberty with the Bill of Rights 1689 after the Glorious Revolution. Indeed, the American revolution was predicated on the lack of representation that colonists had at Westminster.
With the enlargement of the franchise and the establishment of a constitutional monarchy, the Commons has become ever more representative of the English and latterly British people. The responsibility for protecting British taxpayers against unpopular and wasteful taxes continues to rest within the Commons. Parliament existed historically as an institution to protect the free people of England, not impose and thrust upon them laws and taxes which inhibit liberty.
Our greatest export
Individual liberty in England has survived the turbulence of the War of the Roses, the Civil War, the Glorious Revolution and two world wars. It has stood firm where other political constitutions have faltered. Its greatest success however lies in the fact that English liberty did not just remain English, but was extended around the world and is enjoyed by millions of people.
James I unified the crowns of England and Scotland upon his succession to the English throne in 1603. In 1608 the Calvin's Case, ruled that Scotsmen born after King James I united Scotland and England had all the rights of Englishmen. These fundamental rights were the cornerstone for all the proponents and innovators of freedom and lower taxes who came after this, including the Scottish Adam Smith and the American Founding Fathers.
This decision would have a significant effect on the concept of the "rights of Englishmen" in British America. Settlers in the Thirteen Colonies considered themselves to have the same protected liberties as all other Englishmen. Grievances arose over the taxation of American settlers without representation in the House of Commons. The Magna Carta and the English ancient constitution was the fire in the belly of the independence movement. Englishmen at home realised this as well. John Wilkes and many other whig politicians supported the American struggle for independence because they saw that the same liberty enjoyed in England was being assailed in America.
The US constitution was a codification of those liberties which the mother country refused to grant them. It was inspired by the Petition of Right 1628 and the Bill of Rights 1689 and other piecemeal collections of English laws that affirmed the protection and freedom of Englishmen. George Mason, one of the Founding Fathers, stated that "We claim nothing but the liberty and privileges of Englishmen in the same degree, as if we had continued among our brethren in Great Britain”.
England has much to be proud of but its greatest and lasting achievement is liberty and freedom from tyranny.
Over the course of over a thousand years, a concept alien to much of the world until relatively recently, has had its flame stay alight in England. Not only has the freedom of the people of England remained comparatively broad thanks to this tradition, but for many others around the world it is the tradition of English liberty that saw their countries established and ensured that their own freedoms are enshrined today.
The essence of English liberty is the assertion of the people's rights against their rulers. This is seen clearly in our attitude towards taxation. The government relies on taxpayers money and as such, taxpayers must be represented and heard. Taxpayers have to be able to influence and question the government. Protection of private property, individual freedom and safety under the rule of law can be traced back to the foundation of liberty in England.
St Georges Day is a chance to celebrate this fact and to remember that our personal freedoms are not the preserve of this generation, but a longstanding right that must be handed safely to the next.