The Magna Carta – He Will Have No Sovereign

GENEALOGY · AUTHORITY AND CONSENT

Magna Carta, from Runnymede to the fall of paternal authority

Conservatives on both sides of the Atlantic honor Magna Carta as the first charter of ordered liberty, yet the pope who reigned when it was sealed annulled it within ten weeks and had the men who forced it on their king excommunicated by name. He saw what the charter’s admirers have forgotten. Its security clause made the king’s subjects the judges of whether he had kept faith with them, and that principle, carried through the English Civil War, the Glorious Revolution, and the American founding, has reached its last stop in the father’s house. This paper traces the line and argues that the authority the charter first took from the throne it has now taken from the home.

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01

The question

Few documents are honored more widely on the right than Magna Carta. Lord Denning, then Master of the Rolls, called it in 1965 “the greatest constitutional document of all times.” Justice Antonin Scalia, writing for three justices in 2015, traced the Due Process Clause to it, and the Christian Institute told British Christians the same year that its influence is something for which they can thank God.

We ask of the charter what we ask of every idea: where it came from, what truth was twisted to produce it, and where it leads. The usual answer to the first question is that the charter put the king under the law, which is true as far as it goes. The clause everyone remembers, the thirty-ninth, promised that no free man would be imprisoned or dispossessed except by the lawful judgment of his peers and the law of the land, and a Christian king had nothing to fear from it. The clause the barons cared about most was the sixty-first, and it did something else entirely. It put the king under his subjects and made them the judges of whether he had kept his word.

Two terms carry the argument. By paternal authority we mean the authority God gives a father over those in his charge, which they owe honor before they are old enough to consent to anything, and which Scripture and the Protestant confessions treat as the pattern for every human superior. By liberalism we mean the order that grounds authority in the consent of the governed, which American left and right both take for granted. Our claim is that the sixty-first clause wrote into law the principle that authority holds only on terms its subjects judge and enforce, that every later settlement widened the circle of those entitled to judge, and that the circle has now closed around the last authority left standing, the father. In brief, the genealogy runs as follows.

02

Where authority comes from

Our companion paper None Gives What He Has Not sets out the scriptural case in full, so we restate only what this argument needs. The commandment that governs every human superior is addressed to a family: “Honour thy father and thy mother, that it may be well with thee, and that thou mayest live long on the good land, which the Lord thy God gives to thee” (Exod. 20:12). Paul shows where that office comes from when he bows his knees “unto the Father of our Lord Jesus Christ, Of whom the whole family in heaven and earth is named” (Eph. 3:14–15). The word he uses for family, patria, is built on the word for father, so every earthly fatherhood takes its name from the Father in heaven and is received from above before it is ever exercised below.

The Westminster Larger Catechism reads the commandment the same way, teaching that father and mother mean “not only natural parents, but all superiors in age and gifts; and especially such as, by God’s ordinance, are over us in place of authority, whether in family, church, or commonwealth” (Q. 124). The office binds the father as surely as it binds the child. Paul commands children to obey their parents in the Lord, and in the same passage commands fathers not to provoke their children to wrath but to bring them up in the nurture and admonition of the Lord (Eph. 6:1–4).

Christian kings claimed the same pattern for the realm. James VI and I told Parliament in 1610 that “a king is truly parens patriae, the politic father of his people,” and Sir Robert Filmer, who gave the doctrine its fullest form, held that the rights of a father and of a king are the same in kind and differ only in extent. None of this made a father or a king unanswerable. It made him answerable upward, to the God who gave him his charge, and it left those under him no seat from which to judge him. That is the point Runnymede overturned.

03

Runnymede

By 1215 King John had given his barons real grievances. He had lost Normandy, squeezed them with arbitrary fines and heavy charges on their inheritances, and seized the estates of men who crossed him. In 1213 he had also surrendered England and Ireland to the pope and received them back as fiefs of the Roman Church, and in March 1215 he took the cross, so that Innocent III was now his feudal lord and he stood under the Church’s special protection as a crusader.

The barons did not petition him. On 5 May they renounced their allegiance and chose as their commander Robert fitz Walter, who styled himself “Marshal of the army of God and Holy Church,” and on 17 May their supporters opened the gates of London to them. With his capital in rebel hands, John met them at Runnymede and sealed the charter on 15 June, and only then did the barons renew their homage.

Most of the charter is a list of feudal remedies, but two clauses carry the weight of later history. The twelfth forbade the king to levy scutage or aid, beyond three customary cases, except “by common counsel of our kingdom.” The thirty-ninth promised that no free man would be imprisoned, dispossessed, outlawed, or in any way molested “unless by the lawful judgment of his peers and by the law of the land.” Neither takes anything from a lawful king, since a king who taxes with counsel and punishes by law is doing what good kings had always been told to do.

The sixty-first clause is different in kind. It provided that the barons would choose twenty-five of their number to watch the king. If he or his officers broke any article and failed to make amends within forty days, the twenty-five, “together with the community of the whole land,” would “distrain and distress us in all possible ways, namely, by seizing our castles, lands, possessions, and in any other way they can, until redress has been obtained as they deem fit.” The Latin reads secundum arbitrium eorum, by their judgment. Anyone in the realm could swear to obey the twenty-five against the king, the king promised to compel those who refused, and the twenty-five were to fill their own vacancies and decide by majority. John even promised never to seek anything from anyone that would revoke what he had granted, a promise plainly aimed at Rome.

William Sharp McKechnie, whose 1914 commentary is still cited, put the matter bluntly. John had conferred upon twenty-five of his most bitter enemies “a legal right to organize rebellion, whenever in their opinion he had broken one of the provisions of Magna Carta,” and had the clause worked, sovereignty in England “would have been split into two.” Nicholas Vincent, the leading modern historian of the charter, judges that no king or pope could have been expected to accept a document that placed a ruler under the supervision of his own subjects.

That is the principle the rest of this paper follows. A father or a king can bind himself by a promise, and God will hold him to it. Clause 61 took the judgment of whether the promise had been kept away from God and from any superior over the king, and handed it to the men who had extracted the promise, with an army behind their verdict.

04

Null and void

Innocent III had moved against the rebellion before he knew the charter existed. On 7 July 1215, answering John’s complaints, he commissioned the bishop of Winchester, the abbot of Reading, and his own subdeacon Pandulf to excommunicate everyone disturbing the king and the realm and to lay their lands under interdict. The sentence was to be read in every church in England on Sundays and feast days, with bells rung and candles put out, and any bishop who refused to publish it was to be suspended from office.

When news of the charter reached Rome, Innocent answered with the bull Etsi karissimus, issued at Anagni on 24 August. He recounted how he had told the barons to bring their demands to the king humbly, told the king to hear their just petitions graciously, and proposed that anything they could not settle be judged in the king’s own court by the barons’ peers, according to the laws and customs of the realm. The barons had refused that, refused the king’s offer to submit the case to Rome, and refused arbitration, and so the pope gave his reason for setting the charter aside.

They had conspired as vassals against their lord and as knights against their king, the bull went on, and had driven him by force and fear into an agreement “not only vile and base, but also unlawful and unjust.” Innocent therefore condemned it, forbade the king to observe it and the barons to demand it on pain of anathema, and declared the charter and every guarantee attached to it void for all time.

His commissioners had not waited for the bull. At Dover on 5 September they published the July sentence against Robert fitz Walter and eight other leaders by name, laid London under interdict, and excommunicated six clergy who had taken the rebels’ side. To describe the rebellion they reached for the complaint with which Isaiah opens, which in the Septuagint reads, “I have begotten and reared up children, but they have rebelled against me” (Isa. 1:2). Stephen Langton, the archbishop of Canterbury, who had helped broker the charter, refused to publish the sentence and was suspended and sent to Rome to answer for it. The war resumed, the barons offered the crown to Prince Louis of France, and Innocent excommunicated Louis as well.

Three features of the verdict matter for everything that follows. It was not a verdict against law, because the pope himself had proposed judgment by peers, the very formula the charter’s admirers prize in clause 39, and objected only to the arrangement that made the king’s subjects his judges. It was not a verdict that John was innocent, because Innocent conceded for the sake of argument that the king had wronged the barons and still denied that the wrong made them his judges. And the remedy it offered ran upward, from the barons to the king and, if the king failed them, to his superior. The barons went around both and took the judgment into their own hands, and every later step in this genealogy repeats that move.

05

The sentence changes sides

The charter outlived John, who died in October 1216. Within a month the regents of his nine-year-old son, Henry III, reissued it at Bristol without the sixty-first clause and under the seals of the papal legate Guala and the regent William Marshal, a reversal the legate made on his own authority, since there had been no time to consult Rome. They reissued it again in 1217, and in 1225 Henry issued the definitive version in return for a tax, declaring that he granted it of his own spontaneous and free will. Filmer later pointed to that form as proof that the charter’s liberties were the sole act and bounty of the king, a grant from the throne and not a treaty imposed on it.

The Church followed the change of form. In 1225 Langton, who ten years earlier had refused to excommunicate the charter’s enforcers, excommunicated anyone who broke it, and on 13 May 1253 the archbishop of Canterbury and thirteen bishops, holding lighted tapers in Westminster Hall, did the same in the king’s presence and with his assent. Within forty years the sentence had changed sides.

The reversal is not the contradiction it appears to be. What the legate sealed and the bishops defended was a king’s promise, freely given, with the clause that set his subjects over him removed, and a father may bind himself by his word and be held to it. What Innocent had condemned was a son holding his father’s keys, and whenever that principle returned, Rome condemned it again. When Henry’s barons imposed a council of fifteen on him under the Provisions of Oxford in 1258, Pope Alexander IV released him from his oath in 1261, and when Simon de Montfort took the king prisoner at Lewes in 1264, the papal legate threatened the Montfortian party with excommunication.

One piece of the charter, meanwhile, traveled quietly. In 1354 a statute of Edward III restated the thirty-ninth clause, promising that no man would be dispossessed, imprisoned, or put to death “without being brought in Answer by due Process of the Law,” and the phrase due process of law begins there.

06

Such a fellow

Under the Tudors the charter receded so far that Shakespeare could write King John in the 1590s without mentioning it. Its revival came from Sir Edward Coke, chief justice under James I, who treated it as the ancient fundamental law of England and made himself its interpreter.

James held the paternal doctrine in its strongest form, and in 1607 the two men collided over it. At a conference with the judges the king claimed the right to decide cases himself, and Archbishop Richard Bancroft assured him that Scripture gave him that authority. Coke answered, by his own report, that cases must be decided by the artificial reason of the law. When James replied that this would place the king under the law, which it was treason to affirm, Coke quoted the thirteenth-century jurist Bracton: quod Rex non debet esse sub homine, sed sub Deo et lege, the king ought not to be under any man, but under God and the law.

Bracton’s maxim is true, and section 11 returns to it, but Coke used it to place the king under the judges who declared the law, which is to say under men, and the charter was his instrument. When Parliament answered the king’s forced loans and arbitrary imprisonments with the Petition of Right in 1628, it rested its case on the Great Charter, and when the Lords proposed a line preserving the king’s sovereign power, Coke rose against it.

Coke meant that the charter admitted no sovereign power above it, not that England should have no king. His sentence still describes what the charter’s principle does wherever it goes, because a principle that reserves to the ruled the judgment of whether their ruler has kept faith cannot allow any sovereign over them. Charles saw the danger clearly enough to have Coke’s papers seized as he lay dying in 1634, and so did the Commons, which voted in 1641 to publish them, and Coke’s commentary on the charter came off the press in 1642, the year the war began.

07

Every man a king

The war turned the charter’s principle from a claim of the barons into a claim of the nation, and the radicals in Parliament’s army carried it further than Parliament wanted. Writing from Newgate prison in October 1646, the Leveller Richard Overton held that every man is by nature “a King, Priest, and Prophet in his own natural circuit and compass,” whose rule no one may share without his free consent. Three months earlier Overton and William Walwyn had addressed the Commons in the name of “the universality of the people, their sovereign lord,” and dismissed the charter itself as a beggarly thing bearing many marks of bondage, a pamphlet the Commons later had burned. The principle had outrun its document. The barons had judged the king by the charter, and now the Levellers judged the charter by the principle and found it wanting.

Parliament carried the principle to the throne itself. In January 1649 the purged Commons created a High Court of Justice to try the king, and Charles refused to plead, telling the court that “a king cannot be tried by any superior jurisdiction on earth.” The court condemned him as a tyrant, traitor, murderer, and public enemy, and on 30 January he was beheaded at Whitehall after declaring from the scaffold that the people’s liberty lay in having government, not in sharing it, because “a subject and a sovereign are clean different things.”

The king’s side found its answer in Filmer. His Patriarcha, written before the war and printed in 1680, set the father against the charter at the root, tracing kingship to Adam’s authority over his children and the claim that subjects may judge and depose their kings to “the supposed natural equality and freedom of mankind.” Filmer quoted Sir Walter Raleigh’s verdict that the charter had been born of usurpation and fostered by rebellion, and he turned its name against it, writing that the greatest liberty in the world is for a people to live under a monarch, which is “the Magna Charta of this kingdom.”

Filmer also saw where Overton’s principle would end. If mankind is by nature free, he wrote in 1652, then not only every city but “every village, and every family, nay, and every particular man” has a liberty to choose himself to be his own king. The result will be “as many Kings as there be men in the world, which upon the matter, is to have no King at all.” That is Coke’s sentence carried to its conclusion. A principle that will have no sovereign ends with none, in the realm or in the house.

08

The original contract

The monarchy returned in 1660, but the principle stayed. When James II, a Catholic, began suspending laws by his prerogative, leading men of both parties invited William of Orange to intervene, and in December 1688 James fled. On 28 January 1689 the Commons resolved that James, having tried to subvert the constitution “by breaking the Original Contract between King and People” and having withdrawn himself from the kingdom, had abdicated the government, and that the throne was vacant. Tory peers objected that a vacant throne would make the crown elective, which is exactly what it did, and the Lords gave way on 6 February.

The Church of England’s own teaching stood on the other side. Its Homily against Disobedience and Wilful Rebellion, published in 1570 among the homilies appointed to be read in churches, called it “a perilous thing to commit unto subjects the judgment, which prince is wise and godly, and his government good, and which is otherwise; as though the foot must judge of the head.” On this point the church that had renounced the pope taught exactly what the pope had taught in 1215.

John Locke supplied the theory the settlement needed. He had written his Two Treatises against Filmer, and he published them in 1689 to make good William’s title “in the consent of the people.” The First Treatise accuses Filmer of quoting the Fifth Commandment by halves, since it names the mother as well as the father (§6), and the Second Treatise pulls apart the powers the older order had held together. Paternal power, Locke wrote, is given by nature, as a guardianship over children until they reach the age of reason, while political power is given by “voluntary agreement” (§§170, 173).

This is the hinge of the genealogy. For centuries the father and the king had been understood through each other, the king as the father of his people and the father as the king of his house, and each office lent the other its weight. Locke cut the cord, so that the king became the trustee of a contract and the father the guardian of future equals, and he even asked whether paternal power “might not be more properly called parental power” (§52). Once the throne stopped being a father’s seat, the father’s chair stopped being a throne.

09

The parent country

The American colonists inherited the charter through Coke, whose Institutes their law students read, and they turned it against the Crown. In 1775 the Massachusetts provincial congress adopted a seal showing a colonist with a sword in one hand and Magna Carta in the other, under a motto taken from Algernon Sidney, who had written against Filmer.

The colonists still had to answer the paternal argument, and Thomas Paine took it on in Common Sense (1776). “But Britain is the parent country, say some,” he wrote. “Then the more shame upon her conduct. Even brutes do not devour their young.” The phrase itself, he said, had been taken up by the king and his parasites “with a low papistical design.” Paine heard popery in the paternal claim, and the history bears him out in one respect, since it was the pope’s own commissioners who had described the barons of 1215 in a father’s words.

The Constitution that followed carried the thirty-ninth clause into American law. The Fifth Amendment of 1791 forbade the federal government to deprive any person of life, liberty, or property “without due process of law,” the phrase of 1354, which Coke had equated with the charter’s law of the land. In 1856 the Supreme Court confirmed that the two phrases mean the same thing. When the Fourteenth Amendment laid the same command on the states in 1868, it opened the road by which the charter’s principle would reach the American home.

10

The last sovereign

The argument that had taken the king’s authority turned next on the household. Mary Wollstonecraft made the transfer explicit in 1792, hoping that “the divine right of husbands, like the divine right of kings,” could at last be contested without danger. John Stuart Mill completed it in The Subjection of Women (1869), calling the family “a school of despotism” and the subordination of wives the single relic of an old world that had been exploded in everything else. The old world Mill meant was the one in which father and king were understood through each other, and having overthrown the king on the charter’s principle, the modern world could not leave the father standing on the ground the king had stood on.

English law followed over the next century. In 1883, in Re Agar-Ellis, the Master of the Rolls could still declare that “the father has the control over the person, education and conduct of his children until they are twenty-one years of age.” In 1969, in Hewer v Bryant, Lord Denning, four years after calling Magna Carta the greatest constitutional document of all times, said he would get rid of that rule. What remained of a parent’s right, he wrote in words the House of Lords later adopted, was “a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is. It starts with a right of control and ends with little more than advice.” In 1985, in Gillick, the Lords ruled against a mother of ten who had asked the courts to stop doctors from advising her daughters under sixteen on contraception without her consent, holding that the parental right yields to the child’s once the child understands enough to decide. Four years later the Children Act 1989 replaced the language of parental rights with “parental responsibility” and made the child’s welfare the court’s paramount consideration.

American law reached the same place through the due process clause. In In re Gault (1967) the Supreme Court held that “neither the Fourteenth Amendment nor the Bill of Rights is for adults alone.” It dismissed the doctrine that the state acts toward children as parens patriae, James’s own phrase, as one whose meaning is murky and whose historic credentials are of dubious relevance. In Gault the parents had sued to recover their son from the state, so the ruling protected the family, but nine years later the Court turned the same premise against the parents. In Planned Parenthood v. Danforth (1976) it struck down Missouri’s requirements that a wife have her husband’s consent, and an unmarried minor a parent’s, before an abortion, on the ground that “constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority.” Dobbs v. Jackson Women’s Health Organization (2022) overruled Roe and took away the footing of those holdings, but it left standing the premise Danforth took from Gault, that a minor holds constitutional rights in his own name against those set over him. Set side by side, the line runs as follows.

The pattern is the one Runnymede set. Clause 61 did not abolish judgment over the king. It moved the seat of judgment from above him to beside him, among the people he ruled, and let them decide as they saw fit. At the end of the line that seat belongs to a family court weighing a child’s welfare against his father’s judgment, and the father stands where John stood, except that John at least had Rome to appeal to, and the father has no one above the court.

11

What truth it twists

An error that lasts is built from a truth, and the charter’s principle is built from three.

The ruler is under God’s law. Moses commanded that Israel’s king, once established in his government, should write out a copy of the law and “read in it all the days of his life, that he may learn to fear the Lord thy God, and to keep all these commandments, and to observe these ordinances: that his heart be not lifted up above his brethren” (Deut. 17:19–20). Bracton’s maxim says the same, and its first clause matters as much as its second, because a king who stands under God and the law stands under no man. The charter kept the language of law and reversed its order, making the men the king rules the judges and enforcers of the law against him. Clause 61 gave that seat to twenty-five barons, and every later settlement widened it, to Parliament, to the people, and finally to the court that weighs a child’s welfare against his father.

A ruler takes counsel. “They that have no guidance fall like leaves: but in much counsel there is safety” (Prov. 11:14). Clause 12 required the common counsel of the realm before an extraordinary tax, and a wise king would have sought that counsel without being made to. The twist turns counsel into consent and consent into the ground of authority, though the two differ at the root, since counsel informs a ruler’s judgment and consent replaces it. By 1689 the Commons were speaking of an original contract, and Locke could say that political power has no source but voluntary agreement.

A ruler keeps his word. The man who may dwell in God’s tabernacle is the one who “swears to his neighbour, and disappoints him not” (Ps. 14:4), and Henry III’s charter of 1225 was a promise of that kind, made of his own will, which the bishops of 1253 were right to hold him to. The twist turns a promise into a contract the promisee may enforce by force. A promise binds the one who makes it before God, while a contract in the sense of 1215 and 1689 gives the other party a claim against him and the right to judge whether he has kept it. A son whose father has promised him something may ask, plead, and pray, but the promise does not make him his father’s judge.

12

What we do with it

Four things follow, one for each place this genealogy reached.

Personally, honor received authority as received, and keep honoring it for life. Christ held grown sons to the Fifth Commandment and condemned the Pharisees for letting a man withhold support from his aged parents by declaring the money a gift to God (Mark 7:10–13). Honor is not a stage of childhood, and it does not dwindle.

In the home, fathers govern as fathers, under God’s law and answerable to him, neither as tyrants nor as chairmen awaiting a vote. The passage that tells children to obey also tells fathers not to provoke them (Eph. 6:1–4), and the remedy for a harsh father is God’s law laid on the father, not a court set over him.

In the church, stop teaching the charter, the Glorious Revolution, and the American founding as triumphs of Christian liberty, and teach the Fifth Commandment whole, as the catechisms do, reaching family, church, and commonwealth.

In what we advocate, stop defending the family in the charter’s vocabulary. The Supreme Court protects parents through the same clause that gave children rights against them, and when it called the interest of parents in the care, custody, and control of their children “perhaps the oldest of the fundamental liberty interests recognized by this Court” in Troxel v. Granville (2000), it treated the father’s authority as one liberty interest among others, to be weighed by a court against the child’s and the state’s. We argue instead for law that recognizes the father’s authority as an office the state did not create, whose crimes the magistrate punishes but whose ordinary judgments the magistrate does not sit over.

13

Seven objections

“John was a tyrant.” He was cruel and grasping, and many of the barons’ grievances were real, but the question is not whether he sinned. The question is who had the right to judge him. Innocent had offered the barons three lawful roads, judgment by their peers in the king’s court, judgment in Rome, and arbitration, and they refused all three. Calvin, who had no love for tyrants, drew the line in the same place: “Although the Lord takes vengeance on unbridled domination, let us not therefore suppose that that vengeance is committed to us, to whom no command has been given but to obey and suffer.”

“The barons were lesser magistrates.” Calvin supplies this objection as well. In the same section he allowed that “when popular magistrates have been appointed to curb the tyranny of kings,” as the ephors of Sparta were, they may check a king’s license in the course of their office, and he added that “perhaps there is something similar” in the three estates of a kingdom when they meet in lawful assembly (Institutes 4.20.31). The objection fails on Calvin’s own terms. His magistrates hold an office appointed before the resistance begins and resist through that office, but the twenty-five held no office before June 1215. Their party had renounced its allegiance and taken London by force, and the only document that ever appointed them was the charter they made the king seal. They wrote their office in the act of resisting, which is precisely what Calvin’s line between private men and magistrates exists to rule out.

“The pope was guarding his fief.” He was. England had been a papal fief since 1213 and John was a sworn crusader, and Vincent judges that the crusade was Innocent’s overriding concern. Innocent was no friend of kings as such, either, having excommunicated John in 1209 and encouraged a French invasion before John submitted, and Protestants reject the papal claim to judge kings, as the Westminster Confession does (23.4). None of this touches the argument. A pope who judges a king places judgment above him, which is the order of authority in a usurping form, while the barons placed it below him, which is its inverse. The reasoning of Etsi karissimus, that no man may be judge and executor in his own cause against his lord, stands without the pope’s interest, and the Church of England went on teaching it after renouncing the pope. The same chapter of the Westminster Confession teaches that difference in religion does not “free the people from their due obedience” to magistrates.

“The seventeenth-century charter is Coke’s invention.” J. G. A. Pocock and J. C. Holt showed that Coke read his own constitution back into a feudal document, and that the barons were defending their privileges rather than the rights of man. We accept both findings, and neither bears on this argument. A genealogy follows a principle through the hands that carried it, and Coke carried this one by citing the charter, as the Levellers, the Massachusetts congress, and the Supreme Court did after him. The principle he drew out was already in the text, because clause 61 is not Coke’s reading of the barons. It is the barons’ own clause, and it does exactly what Coke said the charter does.

“Due process protects parents too.” It does. Meyer v. Nebraska (1923), Pierce v. Society of Sisters (1925), and Troxel protected parents against the state under the same clause that Gault and Danforth used against them, and that confirms the argument rather than refuting it. In each of those cases the parent wins as the holder of a liberty interest, a claim of one individual against the government that a court weighs against competing claims, and when the child’s claim is weighed against the father’s, the same court decides between them, as it did in Danforth. The clause shelters the father as long as judges find his interest the weightier, but it cannot recognize his office, because the principle it descends from recognizes no authority its subjects may not judge.

“The commandment names the mother, and children grow up.” Locke scored a fair point against Filmer, who quoted the commandment by halves, but the point does not help Locke. A mother’s authority, like a father’s, comes with the child rather than from the child’s consent, so adding her to the commandment adds a second received authority, not a contract. Nor does Scripture tie honor to minority. The authority to command a small child relaxes as he grows, and wise fathers loosen their hold, but the honor the commandment requires does not relax, and Christ applied it to grown men and their aged parents (Mark 7:10–13). Locke turned a relation that lasts for life into a guardianship that expires, and the courts that called the parent’s right dwindling were following him.

“Industry, not the charter, emptied the father’s house.” The factory and the office took fathers out of their homes for most of the working day, and that explains a great deal about how fathers lost their presence. It does not explain how they lost their standing in law. The law of custody, marriage, and parental authority changed by argument, in courts and statutes, and the arguments were made in the charter’s vocabulary of rights, consent, due process, and the judgment of the governed over those who govern them. We do not claim the charter is the only cause of the family’s condition. We claim it introduced the principle by which the family’s law was rewritten.

14

Where the argument stops

The limits of the argument should be as plain as its conclusion.

It does not defend John. He was a bad king, and the pope who defended his crown in 1215 had excommunicated him six years before.

It does not oppose law. The king is under God and the law, and the pope who annulled the charter had himself proposed judgment by peers. What we reject is the subject’s claim to sit as judge and enforcer over his superior.

It does not rest on papal authority. Innocent’s verdict shows how the highest court in Christendom read the charter in its own year, but the argument rests on Scripture and on the confessions’ teaching about the Fifth Commandment.

It claims neither a single cause nor a conscious plan. The barons did not intend Locke, Mill, or the Children Act, and other streams fed the same river, among them the schools and the theories of resistance that our companion papers trace. A genealogy follows a principle through those who carried it, and most of them cited it by name.

It does not counsel disobedience. The laws now in force belong to the powers that be, and Christians owe them obedience in everything lawful (Rom. 13:1).

It does not shield a father from the sword. A father who commits a crime against his child answers to the magistrate like any other man (Rom. 13:4). What the argument rejects is the conversion of the father’s office into a guardianship that a court administers on the child’s behalf.

It stands or falls on one premise. If authority in the family and the realm were conferred by those under it, the twenty-five were within their rights and the father’s dwindling right is justice. Section 02 answers that premise with the Fifth Commandment and with Paul’s account of where fatherhood takes its name, and a reader who rejects the conclusion should reject it there.

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SOURCES

Texts and editions

SCRIPTURE

The Septuagint Version of the Old Testament, trans. Sir Lancelot C. L. Brenton (London, 1844), with its numbering of the Psalms.

The New Testament, King James Version (1611).

PRIMARY

Magna Carta (1215), cc. 12, 39, 61, text and translation in W. S. McKechnie, Magna Carta: A Commentary on the Great Charter of King John, 2nd ed. (Glasgow, 1914). Magna Carta (1216, 1225). Sentence against violators of the charters, Westminster Hall, 13 May 1253. Provisions of Oxford (1258). Statute 28 Edw. III c. 3 (1354).

Innocent III to the bishop of Winchester, the abbot of Reading, and Pandulf, 7 July 1215, and Etsi karissimus, 24 August 1215. The papal commissioners to Archbishop Langton and his suffragans, Dover, 5 September 1215. Latin texts in N. Vincent, “Ten Letters on Anglo-Papal Diplomacy, July–September 1215,” The Magna Carta Project (2015).

An Homily against Disobedience and Wilful Rebellion (1570). James VI and I, speech to Parliament, 21 March 1610. Sir Edward Coke, Prohibitions del Roy (1607), 12 Co. Rep. 63; speech in the Commons, May 1628, in John Rushworth, Historical Collections (1659); The Second Part of the Institutes of the Laws of England (1642). The Petition of Right (1628).

Richard Overton and William Walwyn, A Remonstrance of Many Thousand Citizens (1646). Overton, An Arrow against All Tyrants (1646). Charles I before the High Court of Justice, 22 January 1649, and on the scaffold, 30 January 1649.

The Westminster Confession of Faith (1646), 23.4. The Westminster Larger Catechism (1648), Q. 124. John Calvin, Institutes of the Christian Religion (1559), 4.20.31, trans. Henry Beveridge (Edinburgh, 1845).

Robert Filmer, Patriarcha, or the Natural Power of Kings (written 1630s–1640s; printed 1680), quoting Sir Walter Raleigh, The Prerogative of Parliaments. Filmer, Observations (1652), in Patriarcha and Other Political Works, ed. Peter Laslett (Oxford, 1949), 286.

Journal of the House of Commons, x, 28 January 1689. Journal of the House of Lords, xiv, February 1689. John Locke, Two Treatises of Government (1689), Preface; First Treatise §6; Second Treatise §§52, 170, 173.

Seal of the Massachusetts Provincial Congress (1775), with the motto of Algernon Sidney. Thomas Paine, Common Sense (1776). Constitution of the United States, Amendments V (1791) and XIV (1868).

Mary Wollstonecraft, A Vindication of the Rights of Woman (1792), ch. 3. John Stuart Mill, The Subjection of Women (1869), chs. 1–2.

Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272 (1856). Meyer v. Nebraska, 262 U.S. 390 (1923). Pierce v. Society of Sisters, 268 U.S. 510 (1925). In re Gault, 387 U.S. 1 (1967). Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976). Troxel v. Granville, 530 U.S. 57 (2000). Kerry v. Din, 576 U.S. 86 (2015). Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022).

Re Agar-Ellis (1883) 24 Ch D 317, 326. Hewer v Bryant [1970] 1 QB 357. Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112. Children Act 1989, ss. 1, 3.

Lord Denning on the 750th anniversary of Magna Carta (1965). The Christian Institute, Magna Carta briefing (2015).

SECONDARY

J. C. Holt, Magna Carta (Cambridge, 1965; 2nd ed. 1992). J. G. A. Pocock, The Ancient Constitution and the Feudal Law (Cambridge, 1957). N. Vincent, “The Consequences of Magna Carta,” British Library (2015). D. Carpenter, “Magna Carta 1216,” The Magna Carta Project. Society of Antiquaries of London, “Magna Carta 1225: Legate.”

Published by Beyond Left and Right. The Old Testament is quoted from Brenton’s Septuagint and the New Testament from the King James Version. Innocent III’s letters are our translations from the Latin printed by Vincent. Magna Carta follows McKechnie’s translation. Seventeenth-century texts are quoted in modernized spelling, and Coke’s words of 1628 follow Rushworth. Correspondence: contact@beyondleftandright.com