May 9: Magna Carta (The Great Charter), Parliament And The Origins Of Representative Congress – Guest Essayist: Marc Clauson

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The English Parliament was one important inspiration for the Founding Fathers in designing our own Constitutional system.  In this essay I will explore in more detail the origins of our Congress in the English parliamentary system and the relationship of Magna Carta to our own Founders’ ideas.  Magna Carta is argued to be at the root of the English parliamentary system, so we wish to look to it to find the beginnings of representation.

Magna Carta (or The Great Charter) was subscribed in 1215 after a conflict between certain nobles and King John.  It essentially affirmed a variety of already-traditionally asserted rights in a written document.  But Magna Carta had nothing to say about a parliament.  The actual Parliament would not come into existence until decades later.  So what is the connection between the two?  Peter Boyce has shown the connection when he writes that “Clause 61 of Magna Carta…promised that ‘the barons shall elect twenty-five of their number to keep and cause to be observed with all their might, the peace and liberties granted and confirmed by this charter’. That body would evolve into the House of Lords.”[1]  Over time, the kings, after Montfort, would begin to meet with both nobles and “commoners.”  Thus emerged around 1265 the House of Commons in its infancy.  Eventually the House of Commons came to see itself as the repository and guardian of the rights granted in Magna Carta.[2]  It also began to function to channel grievances from the people to the king and to bring petitions to the king.[3]

But that is not the whole story.  If the Parliament began to view itself as a preserver of rights under the so-called “Ancient Constitution,” how does that function translate to law making, the basic legislative activity as conceived by the Founding Fathers?[4]  Hanna Pitkin helps here.  She notes that over time from the 14th to the 17th century, the parliamentary “members” began first to receive grievances from their people toward the king, then began to be thought of as servants of their communities, and finally developed a collective mentality, presenting common petitions.  Common petitions easily translated into general laws, and the Parliament therefore took on this law making function.[5]

A political theory of Parliament also developed in parallel with events, reaching a culmination in the seventeenth century.  By the fifteenth century the members were acting as a unified body and were called “attorneys…of all the people of the realm.”[6]  Each member acts for the whole nation.  From this developed two other important ideas: (1) that all men are present in parliament (virtually) and (2) that the ruler embodies the entire realm.[7]  In 1642 King Charles I refers to Parliament as the “representative body of the people.”[8]  Thomas Hobbes in his Leviathan (1651) saw Parliament as an agent of the people, acting on their behalf, and called the members “representatives.”[9]  Parliament is an artificial person and its actions are to Hobbes undertaken by virtue of the consent of the people in the social contract.  John Locke would largely agree.  Though he was indifferent as to the specific form of government, he saw the “legislative” as the predominant power and generally a House of Commons as embodying that power of making laws and representing the people whose consent it required to continue.[10]

We know the Founders looked to England to a great extent for ideas for the new government.  In fact, the Colonies were products of English political practice.  Each colony already had at least one chamber of representatives, and most two, obviously modeled after the English Parliament.[11]  Representation by a Congress is intended by the Founders to replace direct democracy, since it would be impossible to assemble all the people in one place at one time.  It is a “substitute for the meeting of the citizens in person.”[12]  If we look in more detail at the structure of Congress, we can see a bicameral legislature much like England’s.  The Senate is the more “aristocratic” body, chosen by (at this time) the state legislatures, as the House of Lords members were appointed by the Crown in England.  The House of Representatives on the other hand is elected by the people, and its makeup is based on population, so that there would be, as much as possible, a proportional correspondence between each House representative and the people whom he represents (though not obviously a one-to-one correspondence).

There were differences between the English Parliament and the Congress.  For example, Senate members were chosen regularly while Lords were permanent.  House representatives were also elected regularly, while Commons members, although elected, held office for a greater time period and elections were sometimes more of a sham than genuine.  The American Founders must have noticed these defects and others, and sought to bring a greater sense of real “standing in” to Congress on behalf of the people.[13]

The final version of the American Congress can be traced back to the Magna Carta itself, but in addition, our Founders drew on a rich source of political ideas that developed throughout the same period from Magna Carta on.  The initiating event then was the core of the British “Ancient Constitution,” but the foundation was the growing notion that the people ought to play a greater role in making laws.  The representative body was the mechanism to achieve that goal.

Marc A. Clauson is Professor of History, Law and Political Economy and Professor in Honors at Cedarville University. Marc holds a PhD from the University of the Orange Free State, SA, Intellectual History and Polity); JD (West Virginia University College of Law, Jurisprudence); MA, ThM (Liberty University, New Testament Studies and Church History); MA (Marshall University, Political Science); BS (Marshall University, Physics); and PhD work (West Virginia University, Economic Theory).

[1]   Peter Boyce, “Magna Carta and the Parliament,” Paper presented at the Parliament of Tasmania on the occasion of its commemoration of the 800th anniversary of Magna Carta, Hobart/TAS, 16 June 2015. https://www.murdoch.edu.au/School-of-Law/_document/WA-jurist-documents/2015-Vol-6/Boyce—Magna-Carta-and-the-Parliament.pdf, 218.

[2]   Ibid.

[3]   See Hanna Fenichel Pitkin, The Concept of Representation.  University of California Press, 1967, pp. 243f.

[4]   On the unwritten and unenforceable “Ancient Constitution” see Glenn Burgess, The Politics of the Ancient Constitution: An Introduction to English Political Thought, 1603-1642.  Penn State University Press, 1993.

[5]   Pitkin, op. cit., 244.

[6]   Stanley Chrimes, English Constitutional Ideas in the Fifteenth Century.  Cambridge University, 1936, p. 131, cited in Ibid., p. 245.

[7]   Ibid.

[8]   Ibid., p. 246.

[9]   Edited by Richard Tuck.  Cambridge University Press, 1996, Ch. Xxxvi.

[10]   John Locke, Second Treatise of Government (1689), edited by Peter Laslett.  Cambridge University, 1988, Chapter XIII, section 149.

[11]   See Donald Lutz, editor, Colonial Origins of the American Constitution.  Liberty Fund, 1998.

[12]   Pitkin, op. cit., p. 191.

[13]   Madison in the Federalist Papers does not believe the elected representatives must be exactly like the people whom they represent, but that they possess sufficient virtue and desire to act for the common good.  But they are also incentivized toward virtuous actions by frequent elections.  See Federalist 57, in Alexander Hamilton, John Jay and James Madison, The Federalist Papers. Edited by George Carey and James McClellan.  Liberty Fund, 2003, Gideon edition.

 

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