Attempts to link documents in the Western tradition with the expansion of popular political participation may be disingenuous and mythical.
Proponents of a chronology designed to demonstrate a thread of popular political participation based on natural law and contract theory among the masses often start with the Magna Carta of 1215 and end with either the Declaration of Independence or the Articles of Confederation, created by the American Continental Congress in 1777. As convenient as the scheme may appear, it is difficult to “connect the dots” of the various documents. American representation in the colonial period has been linked to the Mayflower Compact, the Virginia House of Burgesses, and even the Iroquois Confederation’s constitution. This is even demonstrated in some Political Science texts. Yet how accurate are these comparisons?
Magna Carta and the English Barons
The “Great” charter addressed three important relationships:
- The relationship between the king and his vassals.
- The relationship between the king and the Church.
- The relationship between the king the practices and procedures of everyday government.
Although “most of the provisions of Magna Carta were of purely temporary significance,” [1] three important, enduring elements enshrine the document in English history:
- The notion of due process of law or personal freedom (chapter 39);
- That the king could not levy taxes without the consent of the Council (later Parliament);
- And that the king was not above the law but subject to it.
Sidney Painter writes that most of the “detailed provisions” of Magna Carta “were obsolete within a century…” [2] but that Magna Carta represented the “first explicit admission” of a feudal monarch that he was “subject to the law of the realm.” The idea that Magna Carta relied on “natural law,” however, seems anachronistic.
The Mayflower Compact and Pilgrim Settlers
There is very little in the Mayflower Compact to connect it to Magna Carta. The document identifies the signatories as “loyal subjects” of King James, who is addressed with terms of reverence. The document itself pledged to establish a government for the settlement – a “Civic Body Politic.” The use of the term “Covenant” implies a type of social contract, although the Pilgrim Separatists used such language in an Old Testament sense. This was not the “social contract” idea later defined by John Locke and used by Thomas Jefferson in the Declaration of Independence.
The 1620 document was a brief one paragraph promise to obey the “Laws, Ordinances, Acts, Constitutions and Offices” that “from time to time…shall be thought most meet and convenient for the general good of the colony…” Given the fact that Separatists tended to establish and follow arbitrary laws in line with their view of theocratic government, it is difficult to suggest that this document either flowed out of the principles of Magna Carta or influenced Enlightenment political thinking.
The “Compact” was an agreement strictly among the male Separatists to abide by the laws they intended to create for the settlement. There no hint of “resistance theory” that, coming out of Calvinist France, questioned either the right of the king to reign or that of his agents to enforce his laws. Forty-one males signed the Compact out of 100 passengers.
Alfred Kelly and Winfred Harbison write that the Mayflower Compact utilized the “compact doctrine, hitherto used by the Separatists only for church organization…” [3] They note also that since the Mayflower made land outside of the land grant operated by the Virginia Company, it was within their prerogative to address political authority issues.
Later Application of Magna Carta and Natural Law
While the Declaration of Independence relies heavily on the strength of natural law, it was Sir Edward Coke [4] who interpreted English common law and Magna Carta as a reflection of natural law. The doctrine was rejected in England after 1700 but continued in America.
Sources:
- [1] Brian Tierney and Sidney Painter, Western Europe in the Middle Ages 300-1475 5th ed. (new York: McGraw Hill, 1992) pp. 398-399.
- [2] Sidney Painter, The Rise of Feudal Monarchies (Ithaca: Cornell University Press, 1983) pp. 70-71.
- [3] Alfred H. Kelly and Winfred A. Harbison, The American Constitution: Its Origins & Development, 5th Ed. (New York: W. W. Norton & Company, 1976), pp. 15ff.
- [4] IBID pp 44-45.
