The Green Papers Commentary

(Part One)

Monday, February 13, 2012

by Richard E. Berg-Andersson Staff

As I noted in my Commentary of 9 February last, we have entered a brief period of relative quiescence in the race for the 2012 presidential nominations of America's two Major Parties (in particular, the [if only for the moment] more interesting one in the Republican Party [for- at this typing- there seems little, if any, doubt that President Barack Obama will be renominated for a second term by his own Party, the Democrats)] and this "lull"- as it were- in the often frenetic pace of a Presidential Election year gives me the opportunity to now address something I have brought up in a few of my Commentaries for this website going back to the Iowa caucuses held more than a month ago now.

I have, more than a few times on this website of late, stated- in the context of what I perceive as the rather anomalous position of the presidential campaign of Congressman Ron Paul (his significant 2d-place finish in the Maine Republican Caucuses [as announced over this past weekend] notwithstanding) as representing a specific faction of the Republican Party that has, to this very day, never (at least so far!) commanded a majority within that Party, this being American 'Libertarianism' and my seeing, as the principal reason for this, the fact that the Grand Old Party is, far more, the major bastion of political 'Conservatism' in the United States- that, simply put, Libertarianism is not Conservatism and it is now time for me (or, at least, I now actually have the time) to examine- where not also defend- this premise far more deeply!

To begin to understand the key differences between Conservatism and Libertarianism in the United States of America, we have to first look at two Revolutions in the late 18th Century- each made up of sequences of events that would have a marked effect on Western Civilization and, eventually, much of the World thereafter. I, of course, here refer to, first, the American Revolution (that is: the War for American Independence) and, second, the French Revolution and their respective aftermaths.

For purposes of this piece, it would be well to- at least at first- concentrate on the two seminal documents- each related to one of these Revolutions and which, by coincidence, were each formally adopted via consensus within a legislative body within a mere month of one another: the Declaration of the Rights of Man and of the Citizen (adopted by the National Assembly in France on 26 August 1789) and the so-called American Bill of Rights (12 proposed Amendments to the United States Constitution [of which 10 were to be fairly quickly ratified by the requisite number of American States], reported out of the [First] Congress of the United States on 26 September 1789).

The opening sentence (in Article 1) of the French Declaration of the Rights of Man and of the Citizen (still incorporated as part of the Constitution of today's Fifth French Republic of 1958, by the way) seems- as it might have been to an American (or, for that matter, an Englishman) of the time- innocuous enough: Men are born and remain free and equal in rights, a phrase clearly influenced by the earlier American Declaration of Independence's "self-evident Truths" that all men are created equal and, therefore, are endowed by their Creator with certain inalienable Rights.

The same phrase also mirrors the Virginia 'Declaration of Rights' (also from 1776, even before the Declaration of Independence) which starts off with the notion that [a]ll men are by nature equally free and independent (a political sentiment so inoffensive, in fact, that it remains incorporated as part of the State Constitution of Virginia to this very day [not to also mention having been copied into many another State Constitution throughout the United States of America: for instance, that of my own State- New Jersey- opens up its own Article I (on 'Rights and Privileges') with a variant of the same: All persons are by nature free and independent]); indeed, where the American Declaration of Independence itself proclaims that these United Colonies are, and of Right ought to be FREE AND INDEPENDENT States, this can only be in their respective capacities as political entities representative of the "equally free and independent" people living thereunder.

In other words, the very basis of republican polity emerging in both America and France in the late 18th Century was (and still is), if only on its face, the same; but a closer perusal of the French document reveals key differences from what can fairly be described as more modest American conceptions.

For instance, take Article 17 of the French Declaration, which reads:

Since the right to Property is inviolable and sacred, no one my be deprived thereof, unless public necessity, legally ascertained, obviously requires it, and just and prior indemnity has been paid.

At first glance, this seems to be merely a different way of saying that which appears as part of the 7th of the 12 'Articles' of the American Bill of Rights (that which would become the 5th Amendment to the U.S. Constitution) where it reads:

... nor shall private property be taken for public use without just compensation.

But what is now the 5th Amendment also includes the following just prior to that which I have just quoted above:

...nor shall any person... be deprived of life, liberty or property, without due process of law;...

On the other hand, Article 6 of the French Declaration (which precedes Article 17 and, therefore, the latter Article must be read as having its own terms defined by the former [all 'Legal Hermeneutics/Statutory Construction 101', by the way] in much the same way later portions of the American 5th Amendment must be read as so relating to earlier parts of the same) reads- in part- as follows:

The Law is the expression of the general will. All citizens have the right to take part, personally, or through their representatives, in its making. It must be the same for all, whether it protects or punishes...

In other words, in France, the Law that would so "ascertain" "public necessity" as regards deprivation of one's property would be a result of the General Will (that is: the Will of the People, presumably as "made" through the "representatives" of the "citizens", if not also "personally"; by contrast, in America, deprivation of one's property could only result from the application of Law's "due process" (that is: apart from a process that was wholly political).

This difference may seem subtle to the individual reader; yet a difference it is!:

for, in the French concept of Republican Democracy, the People directly determined (and, on its own mere whim, could even change) Law while, in the American concept of same, Law was but the by-product of its own "due process", one that had been acquired- and slowly- over time (and, further, was principally maintained through live "cases" and "controversies" [to here utilize the language found in the United States Constitution itself (in its Article III, Section 2, clause 1)] by an independent Judiciary operating- at least in theory- apart from direct political influence [in part because, while the so-called "political branches" of Government- the Legislative and Executive- could freely choose on which issues of the day to act (or not), the courts had to wait until some interested party brought an issue before them through a civil (whether legal or equitable-- or both) or criminal proceeding]: the Legislative and Executive got to make and enforce Law, while the Judiciary could only apply Law already so made and/or enforced [that is: the legislature codified Policy, the executive administered it, but the courts- and only case by case- painstakingly adjusted such Policy to the Law as a whole]).

The roots of modern Conservatism go back to the British late 18th Century politician Edmund Burke (indeed, Burke is often considered, if not the father, at the very least the grandfather of Conservatism as that term is generally used nowadays. Before Burke's own era, a "conservative" would have generally been a supporter of the ancien regime (meaning Absolutism within Western governance, the most noteworthy expression of which was L'état c'est moi ["I am the State"]- that attributed to the 'Sun King' himself- Louis XIV of France [whose great-grandson, Louis XVI, was destined to suffer the ultimate from of wrath engendered by Revolution in that same country]), while a "liberal" would have been someone in favor of constitutional restraints on a monarch and his political/governmental retinue (it is, in fact, from this distinction that we also get the generic term "Liberal [Republican] Democracy"- that is: only, of course, where a monarchy has been replaced by a constitutional republic as opposed to governance under a monarch forced to live within the boundaries of a Constitution).

Burke served in the British Parliament for the better part of the three decades beginning in 1765 (the very year of the Stamp Act controversy that so well set the stage for the later confrontations which would lead to the American Revolution) and ending in 1795 (the year the Directory replaced the Convention as the governing entity in France shortly after a military commander named Napoleon Bonaparte had had his "whiff of grapeshot"; Burke, however, would die in 1797, before Napoleon could install himself as master of France a few years thereafter): thus Burke exercised his political statesmanship in an England that was affected, in different yet similar ways, by these two Revolutions on different sides of the Atlantic and, therefore, could make the very observations about each that, in turn, became the very root and branch of what we now call modern Conservatism.

Burke was, thereby, the first political thinker of note to have carved out something of a "middle ground" (at least in the context of his own time)- one on which one could still support Constitutionalism (a la the "liberal" of his own era), while yet rejecting what were fairly seen- by men such as Burke- as the excesses of relatively unfettered Democracy. Thus, Burke could be a supporter of the American Revolution from abroad (on grounds that the American colonists, indeed, had been well prepared [in Burke's mind, by their very inheritances from England itself] to so "augur misgovernment at a distance and snuff the approach of tyranny in every tainted breeze" [without necessarily degenerating into a new form of tyranny itself]) while, not all that much later, denigrating and deploring the French Revolution (itself inspired, in part, by that of the Americans; yet also- and more to the [here, ironic] point- largely the result of a national fiscal crisis itself, at least in part, resulting from debt engendered through the financial- as well as military- support of Louis XVI's government for the American patriot cause [if only to so "stick it" to a rival Great Power-- Britain, of course]).

How could this even be? For were not each of these Revolutions in favor of- where not also in defense of- Rights and Liberties, at their very cores, just that?

The answer is found in the fact that Burke saw the American Revolution as, more or less, a reasonable- where not also just- response to the failure of King George III and his Ministers (however already responsive to Parliament as a constitutional monarchy [and, therefore, hardly the 'Tyranny'- at least in constitutional theory- the Patriot cause in British America so claimed it to be in their own broadsides and, ultimately, in the American Declaration of Independence itself]) to willingly come to understand that their taxation of colonists already inured to what British colonial policy would later term "Responsible [self-]Government" without their also having at least some voice in the taxing body (that is: Parliament itself) was, in and of itself, a clear violation of those very 'Rights of Englishmen' which had come to the fore throughout the entire course of English legal- become constitutional- history from (or so men of the time would have seen English legal history) Magna Carta through the English 'Bill of Rights' following the Glorious Revolution of the late 1680s down to Burke's own day.

On the other hand, the French Revolution was- even in its earliest days- overturning a country's basic governmental system without anything already in place with which to immediately replace it (no doubt Burke saw the end result of the American Revolution- the United States Constitution- as a codifying, as Supreme Law [indeed, the very apex of a triangle that document itself referred to as "the Supreme Law of the Land" (the other corners of said triangle being constitutional provisions of Laws and Treaties [U.S. Const.: Art. VI, clause 2])], of something of a "home-brew" version- on the other side of the Atlantic- of the late 18th Century British Imperial System).

In other words, to Burke's mind, the French- unlike the English (and, by extension, the Americans)- had not yet been well prepared to so reject their own monarchy and, therefore, he publicly predicted (well before these events, by the way) the eventual descent of the French Revolution into, first, the Reign of Terror and, second, the emergence of a strongman to- in effect, as well as necessarily- "clean up the mess" (in France's case, that strongman would, of course, turn out to be Napoleon Bonaparte [again, only after Burke had himself passed away]).

However, lest this be seen as his merely arguing English Common Law as being innately superior to the Civil Law of the European Continent (which, indeed, would be the principal source of the very Napoleonic Code to be promulgated in the earliest 19th Century), one has to dig at least a bit deeper into Burke's political and legal perceptions.

For, doubtless, Burke was himself influenced by the keen interest- in his time- of British historians and political thinkers in the development of the Roman Empire that had emerged from what had once been the Roman Republic (Edward Gibbon's seminal work The Decline and Fall of the Roman Empire was published- in multiple volumes issued over time- from 1776 to 1788, roughly contemporaneously with the "bell curve", as it were, of Burke's own political career) and, as a result, there was- within the English-speaking world of the time- something of the reign (where it was not also the rage!) of Classical Political Theory (the same political theory that influenced the American colonies-become-States [as well as, later, the "more perfect" American Union itself] to have, as their upper chamber of a bicameral Legislative, a "Senate"), a theory that stated- almost as a fundamental axiom- that "Republic" becomes "Dictatorship" out of which comes "Empire" (this was- by the way- to be the same political axiom that, more than a century later, would have already come to agitate the minds of German thinkers and other intellectuals [such as that of one Oswald Spengler, whose basic concept of historical development (as described in Spengler's own The Decline of the West [an English translation of the original title in German seemingly intended, on purpose, to invoke the ghost of Gibbon]) had higher Kultur degenerating into baser Zivilisation largely as the result of Republican Democracy itself degenerating (and Spengler himself didn't see any way it couldn't so degenerate) into an all-pervasive "Imperium"]).

Burke (although born Irish) was, at heart, the quintessential Englishman (had he been alive but a century or so later, he might very likely have been one of those Irishmen-become-Englishmen Irish nationalists would come to denigrate as having treated their native land as nothing more than 'West Britain') and he firmly believed in those aforementioned 'Rights of Englishmen' protected within the vagaries (and, from time to time, vicissitudes) that made up the train of development of said English Common Law, the principal source of which- in the minds of Englishmen (as well as Americans) of Burke's own day- was Magna Carta itself.

Magna Carta (which is merely Latin for "[the] Great Charter") is, of course, the famous document the barons forced King John of England to sign in 1215 recognizing their rights and privileges in their respective positions as vassals to the king as their "lord". The agitation for just such an agreement was spearheaded by the then-Archbishop of Canterbury, Stephen Langton (Langton's other major contribution to Western Civilization? Before he became Archbishop, he was Doctor of Theology [today we might call him 'chair of the Religion Department'] at the University of Paris where he lectured on the text of the Old Testament: Langton found it convenient to, for purposes of such study, divide the books of the Old Testament into chapters [at the time, the books of the Hebrew Bible were only divided into "passages" made up, in the vast majority of cases, of more (in some cases, many more) than one verse as seen in a modern translation of the Bible; the paragraph markings within the Old Testament seen in a classic edition of the King James Version are, indeed, based on these "passages"]-- thus, Langton is credited with introducing the concept of "chapters" of the Bible [verses into which such chapters are now divided came much later]). Langton was highly supportive of the barons' feudal claims which King John originally resisted (with the support of the Pope- Innocent III who, interestingly, had [as Lothair of Segni] once been a friend of Langton's in Paris!).

Thus, Magna Carta (by the way: the Magna Carta [that is, the document referred to as such in English legal and constitutional history] is actually the re-issued version accepted by, and formally adhered to, by King Henry III of England [son of King John] upon his having come of age in 1225) is, at base, a document reflecting the necessities of Feudalism. For instance, in what might be the Charter's most famous passage (its clause [also known as 'Article'] 39)- that is:

No freeman shall be taken or imprisoned, or disseised, or outlawed, or banished, or in any way destroyed, nor will we set out against him, nor will we commit him, except by the lawful judgment of his peers or by the law of the land

the phrase "law of the land" therein was originally meant- or so most historians on the subject have concluded- to be taken most literally (in other words: "law of the land" simply means what we today mean when we refer to [Real] Property Law-- that is: that branch of Law merely regulating land rights [for 'disseizin' is the taking of a freehold interest in land, depriving someone of the possession of Real Estate and, in feudal times, the surest way to "destroy" a person was to take his land away from him]); only much later- and primarily within the crucible of the Puritan Rebellion of the early 17th Century that led to the Regicide (the execution of King Charles I and the ensuing institution [and ultimate failure] of the Cromwellian 'Commonwealth')- was 'the land' within "law of the land" taken to mean 'the entire country'. Only thereby was "Law of the Land" made equivalent, in Law, to the 'Common Law' (that is, a single body of Law common to [hence utilized throughout] the entire realm under the English Crown) itself!

Of course, 'Common Law' itself (as well as those 'Rights of Englishmen' Edmund Burke- and those on the other side of the Atlantic who would legally codify the complaints of the American Patriot cause- held so dearly) well pre-dated Magna Carta.

Today, the term 'Common Law' is often used as a synonym for that which, more properly, should be called (simply) 'English Law'- as opposed to the 'Civil Law' of the European continent descended from Roman Law (which reached its apex when collected in the 6th Century Eastern Roman Emperor Justinian's Corpus Juris Civilis [from which continental 'Civil Law' (not to be confused with the basic division- in English [and American] Law- between Civil and Criminal Law) takes it very name]); I myself have used the two terms 'Common Law' and 'English Law' interchangeably on this website (and I also have used the phrase 'English Common Law') to mean the same thing!

As a legal "term of art", however, 'Common Law' refers to what is generally known as "unwritten law" (even though pretty much all of it has- somewhere along the line- been written down); perhaps a better technical definition might be "unenacted law"- that is: Law outside of specific legislation (these being statutes adopted by a legislative body and/or rules or regulations of an administrative [executive] agency or department; note that, under this definition, the more specific "written law" does not include decisions handed down by judicial tribunals [although, yes, these are written] and, indeed, the most familiar [albeit not the only] source of what, today, is known generally as Common Law is to be found in the opinions of the courts [thus, 'Common Law' is often used as a synonym for 'Case Law'-- Law as it might be derived from precedent established by a series of "cases or controversies" decided by courts]).

In either sense- whether the technical or the more general, even popular one- 'Common Law' (at least in those places directly or indirectly influenced by English Law via historical connection to the once-far flung British Empire and/or its superpower offspring, the United States of America) means the Law as generally enforceable throughout a sovereign jurisdiction: in other words, the Law "common" throughout a given polity.

Earlier in its history, it would have been- likewise- described as that Law "common to the entire Realm", a concept that first started to appear (however nascently) in that England subject to the Norman Conquest of 1066. What William of Normandy- having now added the sobriquet "the Conqueror" to his name- found was a country consisting of autonomous, almost semi-independent, "shires" (the lineal ancestors of "counties" [the latter is a synonym created by Norman French])- each ruled by an earl and each having its own legal precepts, processes and traditions. Prior to William, the King of England had more suzerainty than sovereignty (although Feudalism had already begun to creep in even before the Conquest- much as a side effect of England's having been converted to continental Christianity- and, as a result, these Anglo-Saxon earls were at least prototype vassals to their own king); with William and his successors came, to England, the notion of "King as Fountainhead of Justice" (a by-product of the full-blown Feudalism William was now imposing): although the new Norman overlords proceeded slowly, starting with the development of that branch of Law that would come to be known as Equity (where, if local law [that is, the law of a given 'shire'] failed to provide a proper remedy to the settling of a dispute, the Crown could- of its own volition [upon specifically being appealed to by the aggrieved party to said dispute]- "make things right" [that is: "make the (legal) situation equitable"], as the king was ruling by Divine Right and- apart from the Pope [all of Western Christendom being Roman Catholic in the Middle Ages]- was, thereby, the one person [certainly the one person within his own Realm] who could so enforce [in theory, God's own] justice).

Once the Norman English Crown could claim such a power, it was but a relatively short leap of imagination to conclude that all subjects of the king should be, in turn, subject to the same Law in any and all situations that might arise thereunder. To this end, the great figure in this development is King Henry II (great-grandson of William the Conqueror as well as father to both King Richard Lion-heart and that John Lackland who, as Richard's successor on the throne, would be compelled- by his own vassals, the barons- to adhere to Magna Carta):

Among other things, Henry instituted such devices as juries (descendants of the "sworn inquests" through which the Conqueror himself had collected the database of the year 1086 we today know as the Domesday Book, the famous survey of most of England and Wales [so that William could know precisely what he had so conquered!]); in their earliest form, juries- each made up of the "best men" (baronets [knights] and freemen) of the "vill" (a subdivision of an English "shire"/county, somewhat comparable to a later "township" or equivalent)- were simply called to inquire (hence, the term "inquest") as to whether something illegal might have been done in the vicinity of which there should be future judicial cognizance (thus: these were, in a sense, forerunners of today's Grand Juries).

The importance of said juries, in terms of 'the Rights of Englishmen', was that they gave that class of people in England falling between the barons (nobles such as Earls, Dukes and Counts) and the villeins (ordinary persons who were not quite serfs [serfs were required to ever serve the lord of the land on which they lived], although villeins were also in service to the lord of the nearby manor, because [unlike serfs] they had at least some rights akin to those of freemen [if only in their relations with said freemen]) something of a "say" in the administration of governance, at least locally (and here we can also see the roots of today's Petit [or Petty] Jury, those persons charged with determining the facts- to which the Law is to be applied- derived from legal evidence presented before them during a civil or criminal trial; modern juries are said to be applying the "standards of the community" to these proceedings).

In addition, Henry II also instituted the concept of itinerant judges (his "Justices in Eyre" [pronounced 'air'- this archaic word simply meant "a journey"]) who would hold court from place to place while making a "circuit" of shires/counties, hearing what we today would call "cases" brought before him and largely based on the determinations of the jurors' inquests described above. These itinerant judges eventually broke the hold of local law and, instead, instilled the notion of Law "common" to all who were subjects of the English Crown, regardless of where in the Realm they might reside. (Today, most States of the American Union have either a 'Circuit' or 'District' Court- which, theoretically, is held throughout a 'circuit' or 'district' made up of more than one county [or equivalent]- as their court of general trial jurisdiction, this very institution making it quite clear that Law is not "county law" but, instead, is "common" throughout the State: the jurors might be pulled from throughout the county in which the instant case is heard, but the judge presiding at trial represents the legal authority of more than that one county!)

Indeed, Magna Carta- signed by King John within a half-century after King Henry II's legal innovations- can fairly be seen as something of a reaction against these: the barons were losing their traditional power and they were not at all happy with this state of affairs (after all: just two centuries before, the ancestors of many of these same barons had each ruled their respective shire as something of an Imperium in imperio [a "state within a state"]; half a millennium earlier, the ancestors of some of these many barons were themselves rulers of independent Anglo-Saxon kingdoms before these became subsumed into an all-encompassing Anglaland ['England']): for instance: Henry II had also replaced the so-called 'baronial' sheriffs (the word 'sheriff' is itself a corruption of the term "shire-reeve" [a 'reeve' is an array of armed men-- later sheriffs, of course, would have their posse comitatus ("the power of the county", in the enforcement of which armed men were deputized to assist the sheriff)]: sheriffs were hitherto also known as viscounts ["vice-counts"-- that is, assistants to the ruler of a county, the count], the very root of that particular rank of the Nobility in Britain) with men of lower station more directly in the king's service. By 1215, the time had come- or so it seemed- for the barons to rein the king in!

This Great Charter is, at heart, a feudal document; indeed, it is laid out much like a contemporaneous deed for conveyance of Real Property (and, again, there is that notion that the phrase "Law of the Land" within it was originally meant to be taken quite literally!); because it was so, the Crown (as one of the parties to such a "contract") did not lose all that much via Magna Carta: none of the legal innovations of Henry II's reign were all too seriously affected. In addition, although- as noted above- it was a document primarily intended to enshrine the barons' own rights and privileges (within the overarching concept of Feudalism, in which baronage and its associated landholdings required direct service [almost always military service] to the king and his retinue [on the theory that, at base, all land really belonged to the Crown and the great landowners were but the kings' "tenants-in-chief" (in this, in fact, we can even glean the roots of that which we today call Eminent Domain).])

No, Magna Carta did not create Parliament: the very term 'Parliament' (a good modern synonym of Middle English-via Norman French parlement would be "conference") itself dates back to no earlier than the reign of Edward I, son of Henry III (and, even at that, the 'Parliament's of the first Edward were hardly equivalent to Parliament in the modern sense!), although its roots in the Curia Regis (that very 'retinue' of the king, something the Normans brought with them from the continent) and the Great Council (the occasional meeting of the king with his tenants-in-chief) is readily apparent (and the idea of a king conferring directly, if not regularly, with the "wise men" [the witan] of his kingdom can be seen as having gone back to the Anglo-Saxon witanagemot prior to the Norman Conquest). Nonetheless, it is a terrible anachronism- and well violative of the very concept of 'historical sense'- to suggest that the English (later, British) Parliament directly descends from such earlier institutions or that the Great Charter itself instituted any of this in writing in any event.

What Magna Carta did was to, in effect, drop "hints" as to what might yet be: its famous clause 39 (already quoted earlier in this piece) did acknowledge that there were persons ranking below the barons in the feudal hierarchy- these being the knights of each shire (the baronets who were vassals to- and, thereby, performed necessary military service on behalf of- their respective barons) and the freemen- who also had rights and privileges that were, more or less, "unalienable" in the sense that the American Declaration of Independence would later use that term, rights and privileges from which they could only be alienated by what we today would call Due Process of Law (though the barons made sure that they themselves could only be judged by their own peers-- meaning: other barons!).

This Great Charter also provided- in its clause 61- that its terms were to be enforced by a committee of 25 of the barons: where the king (or anyone acting on the king's authority: what today would be done in the name of the Crown) infringed any part of the Great Charter, complaint was to be made to any 4 of these 25 who, in turn, would petition to the king (or his court, if the king be out of the Realm) for redress; if the king (or his court) then failed to rectify the situation within 40 days, the 25 were empowered to meet together (of their own accord), hear the case against the Crown as laid out by the 4 and, if necessary, then authorize the seizure the king's own property (though the persons of the king and his family were not to be at all put at risk) or obtain justice in any other way possible, having so decided to act together with the community of the whole kingdom, so long as the barons then resume their former obedience to the king once the grievance in question has been so redressed. Within this, we can glean (albeit just barely) the roots of a self-convening Parliament (one where the authority to act did not necessarily depend on the approval of the Crown).

More to the point, however, was the notion of the barons acting "together with the community of the whole kingdom"; surely this "community" did not include the villeins and serfs but, at the same time, it must have included the knights and freemen (who were already part of those local juries created under Henry II). Certainly Henry III (the very monarch who acceded to what is considered the classic version of Magna Carta) thought so for, during his own long reign of some 56 years (47 of them after having so acceded), he would appeal for funds- when necessary- from "four good and discreet men" of each county and borough, giving these "commoners" (villeins and serfs being all too common and, therefore, not at all worthy of being legally considered so!) much power. It is, therefore, no wonder that the "Commons" (the knights of the counties and burgesses [freemen of the boroughs]) would come to- and successfully, too!- demand their own chamber in nascent Parliament, separate from that of Lords.

Despite Magna Carta not having actually created Parliament, great legal minds of a much later time- that of the Puritan Rebellion and the Regicide, the 'Commonwealth' and the Stuart Restoration, the Glorious Revolution and the English Bill of Rights (all in the course of the 17th Century)- would find, within the terms of the Great Charter, much that more ordinary men could not actually see (including the insight that "the law of the land" and 'Common Law' were, more or less, equivalent legal terms) and its House of Commons would come to, more and more, predominate (beginning in the 18th Century): demanding that Ministers of the Crown be as- and then more- responsible to itself than to the sovereign who actually wore the crown (bringing to the fore, in stages, the British Parliament that we ourselves know today!).

It was a pattern that was to be repeated- a pattern that would emerge elsewhere even in Edmund Burke's own day, an age in which rustic colonial assemblies on the other side of the ocean from "mother" Britain- asserting their "power over the purse"- well reined in Provincial Governors who, otherwise, had all the power of royal prerogative within their own colony; in time these same assemblies began to, further, assert their position as "mini-Parliaments" (after all: had they not altered English Common Law by statute to, where necessary, suit their own circumstances?-- had they not also created counties and boroughs of their own?). Having demanded and (at least in their own eyes) been denied- by Crown and Parliament alike- their own claim to Responsible (self-)Government, they rebelled and ended up creating their own (again, "homebrew") version of English 'Common Law' polity: first, these same colonies become "by right... free and independent States" and then, later, that "more perfect Union" of said States we today know as the United States of America.

Similarly, when Louis XVI of France- no less than Henry III of England more than half a millennium before him- was forced to call on his country's Les États-Généraux (the States-General)- consisting of the Nobility, the Clergy and the Tiers État (the "Third Estate"- that is: what, in England, would have been called 'the Commons')- to convene on 5 May 1789 to deal with the national fiscal crisis in which France then found itself (as noted earlier in this piece, a fiscal crisis largely resulting from all too high government spending by France in support of the American Revolution), this pattern played itself out yet again!:

Immediately, the three "Estates" found themselves at odds over the traditional voting procedure- one in which each "Estate" (in its own chamber) voted separately and, therefore, any two chambers could outvote the third (a procedure common, by the way, at the time in a Europe with Parliaments and/or States-Generals consisting of three, or even four [where peasants (the equivalent of England's old 'villeins' and 'serfs') had at least token representation in a chamber of their own], 'houses' [in this regard, then, Britain's bicameral Parliament- with Clergy and Nobility sitting together as a combined House of Lords "Spiritual and Temporal"- was rather unique!]). The problem was that the members of the Tiers État outnumbered the two other "Estates" combined (thus, were the States-General to meet as a single body, the 'Third Estate' would always prevail; most of those in the other two "Estates" [understandably, if one is willing to here see things from their perspective] refused to go along with this, insisting on their ancient and honorable privileges to meet as separate chambers and- together, yet still separately- potentially prevail over the third); another issue was that, while there were some nobles and clergymen who were willing to meet in a single-chamber States-General, the Third Estate managed to present a, more or less, united front against the traditional voting procedure of three separate 'Estates' (thus, it was not merely a matter of mere numerical superiority, for the 'Third Estate' had also gained the moral high ground in this dispute).

Unable to break the deadlock, the Tiers État- on 17 June 1789- simply declared itself the 'National Assembly' (although it invited those noblemen and clergy who were already willing to sit in such a single legislative body to now join them) and, three days later, when what were now "deputies" to the National Assembly (including at least some clergy) found themselves unceremoniously locked out of the hall in which they had been prepared to meet, they assembled anyway on an outdoor space used for lawn games of the era and all assembled swore to not adjourn their new National Assembly again until they had created a new, written Constitution for France (this being the so-called "Oath of the Tennis Court")-- indeed, it was in the course of their duties as members of a rump "constitutional convention" that the Declaration of the Rights of Man and of the Citizen was itself to be drafted.

The basic question for Englishmen such as Edmund Burke who were observing all this (as many of these same men had already observed the War for American Independence) from afar was 'how far shall such defiance of lawful authority be permitted to go?'

Burke, in particular, found much of the language of the French Declaration deeply disturbing: besides those provisions within it already quoted near the beginning of this very piece, there was also that Declaration's Article 3 which stated:

The source of all sovereignty lies essentially in the Nation. No corporate body, no individual may exercise any authority that does not expressly emanate from it.

To Burke, this was further proof that the French Revolution was already siring a Government of Men and not of Law: it was bad enough that (to men like Burke) the National Assembly had, via its 'Oath of the Tennis Court' denied- nay, even deprived- the other two Estates of what was, in Burke's own mind, lawful legislative process, but here also was a rather blatant statement that, in France, the Nation- and not the People per se- was to, henceforth, be the source of Sovereignty! Thus, the "representatives" of the "citizens" were, in fact, not actually representing said citizenry, but the Nation itself (and it was this- much as anything else- that allowed for a single national leader- first, as 'First Consul', then as 'Emperor' [that is: Napoleon]- in the ultimate aftermath of the French Revolution [things that- as I have already noted earlier- would not have at all surprised Burke had he but lived to know about it]).

Granted: yes, the American Constitution itself had also been the result of similarly "extralegal" procedures (for it is altogether obvious that the Constitutional Convention of 1787 in Philadelphia went far beyond its original authority- as granted it by the Confederation Congress- to merely revise the Articles [of Confederation]) but, after the Philadelphia Convention, the People of the States were permitted to elect Conventions in each State which would, on behalf of said People, ratify the new Constitution or no (as it turned out, 11 of the 13 original States ratified it- one [North Carolina] holding out until the new Federal Congress could report the American Bill of Rights out to the States for ratification; the other holdout eventually so ratifying under at least some duress [for tiny Rhode Island would not have so easily survived economically, despite its own name, as an "island" surrounded by a "sea" of States so United; even the feistily independent Republic of Vermont was, by then, champing at the bit to become one of the United States once its own dispute with New York State- which claimed jurisdiction over Vermont- had finally been settled!]).

Once the first 11 had so ratified the original Constitution, the Confederation Congress itself formally accepted the results (despite their initial "extralegality") and then even went so far as to, by statute of its own, set up a schedule for the first Federal Elections under the new "more perfect" Union yet to be formed by the new Constitution, a Constitution that made it most clear- in its own Preamble- that We, the People... do ordain and establish this Constitution for the United States of America!

Moreover, the States of the American Union were- at least in part- still operating under their old colonial legal systems-- thus: any and all laws adopted by a colonial assembly (or the English 'Common Law' where it had not been so altered) remained in force unless or until altered or repealed by the still-relatively new State legislatures (that is: so long as any and all such colonial era laws did not themselves conflict with the States' own still-relatively new Constitutions [and, in addition, Connecticut and Rhode Island would continue to utilize their respective Royal Charters as their own Constitutions for some time yet!] or the new Federal Constitution itself).

Meanwhile, the local courts that were in place during colonial times continued to function (unless and until reorganized) under State governance: Justices of the Peace continued to function as Justices of the Peace; County Courts of Quarter Sessions (consisting of the county judge plus all the justices of the peace in that county and meeting every three months- hence its name) continued, in most States, to govern the county through setting county tax rates and providing for the collection of said taxes, after which the resultant revenue would be disbursed to pay for the maintenance and repair of important roads and bridges and maintaining the county courthouse and jail; both New Jersey and New York (to take two interesting examples) retained- after the American Revolution- their respective Supreme Courts of Judicature as the trial court for major civil and criminal cases (New York still has [albeit confusingly so!] the Supreme Court as its trial court of general jurisdiction [New York's highest court- its court of last resort- is, on the other hand, the Court of Appeals], while New Jersey replaced its old [general trial] Supreme Court with Superior Courts only via its State Constitution of 1947 [up till then, following what has come to be known as the "old English judicial system", the court of last resort in the Garden State was something called the 'Court of Errors and Appeals' consisting of all the Supreme Court (that is, trial) justices in the State and presided over by the State's Chancellor (whose other principal judicial duty was to hold the Court of Chancery, which heard cases at Equity)]).

All in all, the American Revolution was- as far as the Rule of Law be concerned- hardly much of a revolution at all!

By contrast, the 'Third Estate' never even bothered to gain legal approval for its actions in France during the summer of 1789 and after.

Perhaps one of the best summaries of the problems with the Declaration of the Rights of Man and of the Citizen emerging out of the French Revolution is to be found within the article entitled 'FRENCH REVOLUTION' in the Eleventh Edition of the Encyclopaedia Britannica (published in 1910, the 11th is considered to be the most comprehensive edition of that venerable [as it calls itself] 'Dictionary of Arts, Sciences, Literature and General Information'), where it is written:

Not intelligence and public spirit but political wisdom was lacking in the National Assembly. Its members did not suspect how limited is the usefulness of general propositions to practical life. Nor did they perceive that new ideas can be applied only by degrees in an old world.

That statement could have been written by Edmund Burke himself!

The same now-century old Encyclopaedia Britannica article also notes that [i]n France there had been no historic preparation for political freedom (this being in stark contrast to England-become-Britain where the development of the Common Law led- however slowly, yet surely- to the concept of those very 'Rights of Englishmen' American colonists- themselves prepared, for at least a few generations, to exercise these through responsible self-government- felt had been denied them during the latter portion of the 18th Century). The article goes on to note that [t]he desire for such freedom was in the main confined to the upper classes. During the [French] Revolution it was constantly baffled. No Assembly after the States-General [of 1789] was freely elected and none deliberated in freedom. Yet, the same article also notes, the National Assembly could not have done what it did (such deeds eventually leading directly to the Reign of Terror and, ultimately, Napoleon I) without the support of popular opinion and, indeed, most of what the Assembly did was anticipated by actual revolt.

In short: in France, after its Revolution had already begun (with the storming of the Bastille on 14 July 1789- a mere month after the 'Third Estate' had so declared itself a 'National Assembly'), the law followed the will of Men (including Men of the Mob in the streets and on the barricades) rather than men following the Rule of Law. It was this- more than anything else- that most shocked the conscience of an Edmund Burke- a "liberal" in the old sense, yes; but a "conservative" in the brave new world of his own era: that of constitutional monarchies and republics of at least somewhat limited democracy.

Indeed, to this very day, the French model of Republicanism scares the bejeezus out of many, if not most, American conservatives (so there is actually far more to that altogether weird affectation for calling one of America's favorite ways of eating potatoes "Freedom Fries" back around the start of the war in Iraq back in 2003 than might have originally met the eye! [;-)])...

or, as Newt Gingrich himself might have said (indeed, did essentially say through the political ads produced by his own presidential campaign) in the run-up to the South Carolina Primary this past 21 January: not only is Mitt Romney "the Massachusetts Moderate", he-- he-- speaks French! ;-)

After all, that 1910 Encyclopaedia Britannica article on the French Revolution also notes that, while [t]he Americans first established modern democracy, the French made it a militant creed.

Yes, Burke could have written that, too!

Find PART TWO of this series here


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