To Break The Monopolies, The King Must Die
Part Eleven in a series about Copyright in the Age of Artificial Intelligence
How do you get rid of a bad king?
Simple answer: off with his head!
But that facile answer doesn’t really tell the whole story. Unless it is an assassination, the execution of a monarch never occurs in isolation. When the goal is regime change, the killing comes at the climax of a conflict between two groups: those who demand change and those who refuse to consider it.
Which means that even when the bad king is taken out of the equation, the people who are pushing for change haven’t necessarily solved the problem of what to do with his followers.
A murdered king is a martyr. The dead king will, for a little while at least, still retain a considerable entourage that consists of various courtiers, councillors, advisors, handlers, administrators, bureaucrats, ministers, judges, assorted flunkies, cronies, bootlickers, beneficiaries of patronage, and hangers-on.
Plus an army.
Those supporters have a stake in maintaining the old order. They will not disperse quietly, nor will their passions diminish. It’s more likely that they will become even more incensed if their hero is executed in cold blood by a self-appointed committee.
That means civil war.
To put this into a contemporary context, let’s draw an analogy to the impeachment process in the United States. Full disclosure: this will be an imperfect analogy, but don’t let that stop us.
Lots of people believe that Donald Trump abused the powers of the office of President of the United States. They point to actions that he took while in office.
We’re all familiar with the litany cited by investigators in his two impeachment hearings. No one, not even Trump himself, denies that he took these steps, but the legality and meaning are hotly debated.
Trump unlawfully pressured a foreign ruler to dig up dirt on his political rivals;
Trump obstructed justice;
Trump pressured elected representatives to interfere with voting;
Trump did nothing to protect the Capitol while hooligans ransacked Congress and beat Capitol policemen.
Trump was impeached twice, but that did not cause him to change his behavior in any observable way. Upon leaving office, Trump knowingly broke national security laws by hauling dozens of crates of confidential national secrets to his clubhouse bathroom; then he hid documents from federal investigators; then he instructed flunkies to delete evidence of the crime.
Trump has done everything in his power to incite violence against the public servants who are investigating these crimes. Lately he turned his firehose of invective against three of the four judges who will rule on the cases where he has been indicted. And his supporters have threatened grand jury members in some of the cases.
But for Trump’s diehard followers, even when they watch the video or read the abusive tweets, the evidence is not enough to change their minds.
To his defenders, Trump has done nothing unlawful. They say he is merely exercising his right of free speech and carrying out his official duties as he interprets them. They respect the fact that he speaks up and pushes back hard against the Deep State.
To the pro-Trump crowd, their guy is a victim, not a villain. The pro-Trump crowd sees the vast machinery of government turned against their guy. What other people call due process, they call weaponization.
By delegitimizing the process of holding a rogue president accountable, Trump allies risk breaking the machinery of a democracy. For his supporters, that’s an acceptable outcome if it means their guy wins.
That’s why - astonishingly to his opponents - Trump remains the front-runner among Republican candidates for the 2024 national election. Roughly half of registered Republicans plan to vote for him.
We’re not going to resolve the Trump conundrums here.
The point is that we don’t need to reach far into the distant past to find examples of bad rulers with diehard followers. It’s obvious that even today, when an entire nation — and the world — can witness a bad ruler cheerleading for an insurrection against his own government on national television, there will always be some folks who defend a bad ruler and find his actions blameless.
Even a terrible leader has loyal followers
Not a perfect analogy. I hope it illustrates the point that even a bad king will retain a core group of loyalists who intend to keep on fighting even after he has been hounded out of his castle and thumped soundly on the battlefield (or at the ballot box).
So it was with the weak English monarchs that followed Queen Elizabeth I.
The Stuart dynasty that followed the Tudor monarchs included some of the worst kings in British history. They were vain, arrogant, disdainful, aloof, clueless, disengaged and remarkably ineffective rulers. They broke laws, ignored Parliament, arbitrarily raised taxes without legislative consent, provoked needless military conflicts, and even sent the English army to invade their own kingdoms.
At one point, King Charles I even marched with armed guards to Parliament to arrest representatives in the House of Commons. That unprecedented assault on Parliament oddly foreshadowed Trump’s January 6 rally that incited a mob to march on the Capitol to lynch the Vice President. History doesn’t repeat, but it thrums with echoes.
You can see where this is heading. Charles I was bad ruler who waged war on his own people and refused to engage constructively with his government, egged on by the full-throated support of his raging followers.
The dismal spectacle of raging controversy around Trump’s recent indictments underscores the universal truth that even abundant evidence of bad leadership and treason will not persuade diehard supporters to comply with a new regime.
Removing a ruler is a politically dicey proposition. It can easily backfire.
The terrible, no-good-option, very difficult decision
During the Trump presidency, the leaders of the Democratic Party in the US Congress were painfully aware of two things. They faced the same two terrible options that confronted Parliamentary opponents of the Stuart kings in the 17th century. Namely:
They had to do something to stop the tyrant; otherwise the bad behavior would continue, and maybe get worse.
But anything that they did might turn the tyrant into a martyr and thereby galvanize his followers, which could lead to a much bigger conflict.
It’s a lousy choice. Either you do nothing and then you may end up licking the boot of an autocrat; or you take action to dethrone the tyrant, and risk civil war.
Historically, those who advocate for change tend to dither and wait until the damage wrought by Item 1 is so great, it outweighs the risk of Item 2.
The longer they wait, the worse the consequences.
That said, it’s easy to see why they hesitated. Anyone who resolves to take action against a populist tyrant is doomed to face intense, deadly opposition. Even if you believe you are taking action for the right reasons, you may nevertheless start a civil war.
Things today have not changed as much since 1649 as we like to believe.
The Path to Civil War Is Paved Right Through Weak Leaders
Civil War is exactly what happened in mid-1600 England.
King Charles I was so incompetent, so tone-deaf, and so staunchly opposed to any kind of cooperation with Parliament that his intransigence led inexorably to the English Civil War.
It was a war he could have easily avoided. He could have ended it at any time. But that’s not how the civil war came to an end.
The English Civil War ended with Charles’s head being picked up out of a basket by his anonymous executioner, who grabbed the long curly locks of hair and tossed the dead king’s head towards the feet of English soldiers.
Beheading ensured that the tyrant would not return to rally his supporters for a comeback tour. But Parliament soon learned the hard way that it took more to put an end to Civil War: broad structural reform was necessary.
Absolute Power Corrupts Absolutely
Let’s recap what we previously learned about Charles’s predecessors: Elizabeth I and the her father were masters of manipulation. The Tudors understood how to dole out favors to various ministers and members of Parliament to ensure that they had plenty of support. And they were always on the lookout for signs of dissent and potential opposition: those were nipped in the bud. Consequently, there was always elite support for the monarch, no matter how bad the governance.
Corrupt? Of course. Blatantly. This was about power, not process. The Tudor kings and queens made no apology for buying off key members of Parliament with lucrative monopolies. That’s how they maintained a tight grip over factions.
Two weeks ago, we began our study of the Tudors with a brief consideration of a then-novel political concept: the separation of powers. The idea is not complex, but as we will see in tomorrow’s article, the implementation most definitely is.
Separation of powers is animated by a conviction best expressed by Lord Acton two centuries later: absolute power corrupts absolutely. If all power is concentrated in the person of the king, then the absolute corruption of that monarch is inevitable.
The English nobility managed to devise a robust antidote to the corruption surrounding a monarch, but it took centuries to implement it.
Instead of concentrating in a single person the various powers of government (such as raising taxes, writing laws, enforcing them, ruling on disputes, maintaining an army, and so on), these powers should be distributed to separate branches of government that would then operate independently and, ideally, cooperatively. Each branch had the power to check the others from overreaching.
An important step in the process of separating powers was to limit the king’s ability to raise money without Parliament’s consent. Without income from taxes, Kings found it difficult (but not impossible) to pay an army or navy or finance adventures.
Kings were clever, surrounded by even cleverer advisors. They devised alternative routes around the game board to bypass Parliament, raising money via customs duties, ship money, taxes on knights, and so on. Charismatic monarchs were able to raise volunteer armies and even navies.
The monarchs also sold monopolies, often to members of Parliament who auctioned them off to merchants. Removing the king’s power to grant monopolies was an important step in the separation of powers. As we’ve documented, this process took nearly two centuries.
Copyright in the context of the separation of powers.
In the Elizabethan age, the copyright monopoly managed by the Company of Stationers was more than a royal license to produce books: it was also a tool to control publishers and suppress unauthorized content.
An immense amount of political power was compressed into the royal grant of copyright. By deploying it, monarchs not only determined who could profit from publishing; they also gained control of the political narrative with pre-publication censorship, which meant the king could shape public perception of his reign while suppressing competing narratives from critics and rivals.
This rankled Parliament. That’s why Parliament eventually determined to remove copyright power from the kings. Breaking up the power concentrated in Elizabethan copyright was a multi-step process that took a century.
Let’s compare the before-and-after.
Modern copyright differs from Elizabethan copyright in three significant ways.
Under the Tudor monarchs, copyright was not available to everyone: it was only granted to a few favorites. It was perpetual. And it was conditional. It could be revoked on a whim, which means it was basically a license subject to the momentary impulse of a capricious tyrant.
In contrast, modern copyright is available to everyone as an automatic right, not a privilege or license. It is not granted by someone in power, and therefore it cannot be revoked if the powerful person happens to change an opinion. But modern copyright is not intended to be perpetual: it lasts for only “a limited time.” The expiration date applied equally to everyone who had a copyright.
A key difference is equality. Modern copyright is equally available to everyone, and equal in duration. Nobody has the power to play favorites and bestow gifts.
In order to break the absolute power of the monarch, the power of granting copyright monopolies had to be removed. Easier said than done. In this article and the next, we will trace how that occurred.
Can a King be forced to comply?
For centuries, the nobility and gentry of England had attempted, with varying success, to impose some constraints on the king. The Magna Carta in 1215 was just a starting point, and it didn’t quite stick: King John repudiated it immediately.
For the next five centuries, kings and nobles jousted over questions of “who writes the laws” and “who raises taxes” and “who is subject to the law”.
Even in the late 17th century, the Stuart monarchs stubbornly adhered to the divine right of kings. They rejected the principle that the king is subject to the law of the land. They insisted on manipulating the courts by direct interference or by running a parallel judicial process through the Star Chamber. And they refused to call Parliament until it was absolutely necessary, which meant that sometimes a decade or more might pass before Parliament convened.
Rather than risk a direct confrontation, which could be deadly, opponents in nobility and gentry pursued a strategy of trimming off the edges of the King’s power whenever Parliament was summoned. First trim: the King’s spending power was constrained by Parliament. Taxes could only be implemented with Parliament’s consent.
Then the power struggle turned to royal monopolies. The practice of granting letters patent was famously abused by Queen Elizabeth I until she was finally obliged by Parliament to terminate the most contentious monopolies and submit the rest to the courts for independent review. Two decades later, Parliament passed the 1624 Monopolies Act that revoked most royal monopolies.
Over decades, a coherent political strategy became clear:
First, curtail the Monarch’s ability to raise revenue independent of Parliament
Then force the monarch to refer disputes to the courts for independent review
Then prevent the monarch from circumventing Parliament by granting monopolies (including copyright)
Finally, compel the monarch to obey the laws passed by Parliament
By the end of Elizabeth I’s reign, it seemed like this approach of gently chiseling away the edges of the king’s power might actually work.
But that’s when Parliament ran into the brick wall known as James I.
The Stuart Kings re-centralized power
Queen Elizabeth I never married and died childless. The Tudor dynasty came to an end. The English throne therefore went to her nearest relative, her cousin who ruled in Scotland as James VI.
When the new Scottish king arrived in England and took the moniker James I, he refused to play along with Parliament. In his view, Parliament existed to rubber stamp his decisions. His son Charles I shared this stubborn belief.
At this point, some readers are probably thinking, “Come on, already! How could King James and King Charles be so dense? Weren’t they aware of centuries of slow, grinding political progress in England?”
The Stuarts did not care. They were not from England. For generations, the Stuarts ruled Scotland as staunch adherents to the ancient tradition of the divine rights of kings. James and Charles were raised in this tradition.
In Scotland, Parliament was weak. The Stuarts saw no reason to conform to the English Parliament. They were not accountable to Parliament. Their vision of governance was to consolidate all political power in the monarchy.
Indeed, they intended to expand the power of the monarch. The Stuarts attempted to fuse together absolute control over three kingdoms: England, Ireland, and Scotland.
So the stage was set for maximum confrontation between the King and Parliament.
Absolute rule requires mad skillz
The Stuart plan might have worked if either king were skilled in diplomacy or gifted with a gilded tongue. The problem was that neither James I nor his son Charles I were especially adroit rulers. They were clumsy, awkward, and weak. They avoided Parliament. They picked pointless battles. They squandered their power.
Absolute monarchy is a game best played by virtuoso charmers with inexhaustible determination. Some, like Henry VIII and Louis XIV, have the talent and stamina to pull it off successfully. These dynamos seemed to gain energy from the public performance and the daily demonstration of their virility and alpha dominance. They relished the cut-and-thrust of politics, and were ruthless when necessary.
But that kind of talent never seems to last for more than two generations. Elizabeth I was the exception. She was a quick study, a charmer, highly intelligent, and a cold-blooded killer. That’s how she managed to carry on Tudor dominance for nearly half a century.
Eventually every dynasty ends with a dud. That is, with an indecisive, vacillating, pusillanimous, micromanaging, self-contradictory, bumbling, vain, uninspiring, tedious weakling. Like Louis XVI of France or Nicholas II, the last Romanov czar of Russia.
Forever unsure of their power, jealous of popular figures, tone-deaf to the tenor of the times, yet prideful, thin-skinned and obsessive about minutiae while blind to the big picture, these adult children in king’s robes always end up doubling down when instead they should cut a reasonable deal, insisting on ruling with an iron fist when they really only have a weak grip.
This story always ends the same way. With a head in a basket. That is how a dynasty of absolute monarchs comes to an end.
The English had the opportunity to experience this unpleasantness twice with the Stuart line of kings who followed Elizabeth I.
In tomorrow’s newsletter, we will trace how the English Parliament finally succeeded in achieving the separation of powers, ending by enacting the first modern copyright act. To get there, it was necessary to kill a king.
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