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Magna Carta: Why should we care?

May 4, 2015

petervickery

Law Day Remarks, May 1, 2015, Old County Courthouse, Northampton, Massachusetts

Eight hundred years ago at Runnymede in England, King John agreed to a document that came to be known as the Great Charter (in Latin, Magna Carta). Should we care, 800 years later? I argue that we should care, that we should consider Magna Carta’s provisions the “title deeds of freedom,” as Winston Churchill called them, and value them accordingly. To help make my case I offer two exhibits: stanza and a seal.  I’ll start with the stanza:

At Runnymede, at Runnymede,

Your rights were won at Runnymede!

No freeman shall be fined or bound,

Or dispossessed of freehold ground,

Except by lawful judgment found

And passed upon him by his peers.

Forget not, after all these years,

The Charter signed at Runnymede.

Rudyard Kipling wrote those words – a stanza from his poem What Say The Reeds of Runnymede – in the early Twentieth Century for schoolchildren across the British Empire. We are not in the early Twentieth Century, and even though some of us here this morning are still in school we are none of us in the British Empire. So why should we “forget not after all these years the Charter signed at Runnymede”?  Because the process by which this country emerged from the British Empire – the very decision to become a separate, independent country – had something to do with Magna Carta.

Don’t take my word for it. Take the words of the people who brought about our independence. In the summer of 1775, after Lexington and Concord, the members of the provisional Massachusetts government, called the Council, voted to adopt a seal. They wanted to represent visually their principles and their mission. As the seal of this ex-colony they chose “an English American holding a sword in the right hand and Magna Charta in the left with the words Magna Charta imprinted on it.”

Massachusetts seal 1775

Massachusetts Seal, 1775

Let us think about the significance of that choice. The seal of our Commonwealth, the one that our predecessors designed at the beginning of the Revolutionary War, featured “an English American” holding a sword in one hand and, in the other hand, Magna Carta.

If anyone asked them what they were fighting for, the Patriots had a ready answer: What are we fighting for? Magna Carta.

That seal tells us that these Patriots thought of Magna Carta’s provisions as the “title deeds of freedom.”  They were demanding a set of rights first described at Runnymede in 1215, reissued in the Middle Ages, and brought up again in the 1600s when the King tried to raise taxes without Parliament, ignoring and bypassing Parliament.

When Parliament would not provide him with taxes, King Charles I tried to raise money by other means, namely forced loans. If you were a landowner and refused to lend him the money, the King would put you in prison. Without the trouble of a jury trial, he could put you in jail. Some people opposed this practice. What was the legal basis for their opposition? Magna Carta.

Not Magna Carta as some vague ancient idea, but rather some specific clauses of Magna Carta. For example the 14th clause, which provided: “To obtain the general consent of the realm for the assessment of an aid… or a scutage [forms of taxation], we will cause the archbishops, bishops, abbots, earls, and greater barons to be summoned individually by letter.”

In plain English? To levy a tax the King will obtain the consent of the realm through an assembly of the major landowners. Or more simply, no taxation without representation.

The 28th clause of Magna Carta stated: “No constable or other royal official shall take corn or other movable goods from any man without immediate payment, unless the seller voluntarily offers postponement of this.”

In plain English? No taking without just compensation.

These are not airy, abstract ideas. They are certain, particular rights of the individual. In the 1600s Parliament had to defend them against the king. In the Petition of Right 1628, drafted by Sir Edward Coke, Parliament said:

“[B]y the statute called ‘The Great Charter of the Liberties of England,’ it is declared and enacted, that no freeman may be taken or imprisoned or be disseized of his freehold or liberties, or his free customs, or be outlawed or exiled, or in any manner destroyed, but by the lawful judgment of his peers, or by the law of the land.”

Coke was quoting from the 39th clause of Magna Carta:

“No freeman shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.”

The law of the land. Not the caprice of the king.

That tax dispute culminated in a war, the English Civil War of the 1640s, a war between Parliament and the King. When war broke out, some Puritans left Massachusetts for England, to go fight for Parliament, for the principle that sovereignty vests not any particular king but in the law. They took up arms to defend the sovereignty of the law. What law? The law of the land.

Later in the 1600s, after the English Civil War, the dispute blew up again, this time because the King was (again) raising and spending money without the consent of Parliament. Parliament was also vexed that the King had started the practice of dispensing and suspending: dispensing with some laws, suspending other laws and their execution, without consent of Parliament. In other words, picking and choosing, rewriting some acts of Parliament and completely ignoring others.

So in 1688 Parliament sent one King on his way and brought in substitutes in what became known as the Glorious Revolution. Parliament then passed the Declaration of Rights, later called the Bill of Rights, which restated “certain ancient rights and liberties.”

In what sense was this Glorious Revolution a revolution? When the King purported to suspend laws and rewrite them, he was turning the constitution on its head, upside down. To restore the old constitution (to turn things the right way up) Parliament rotated or revolved.

But after the Glorious Revolution, a new doctrine took hold in England: Parliamentary supremacy, the idea that Parliament was supreme or sovereign and could pass any law it wanted. One example of a statute that embodied this novel idea was the Declaratory Act of 1766, which asserted the right of Parliament to legislate “in all cases whatsoever.” No exceptions.

Over here, that doctrine didn’t really take. Our predecessors in Massachusetts held fast to the older doctrine that no government could uproot the law of the land. They adhered to the ideas described in the Petition of Right back in 1628 by Sir Edward Coke, the idea that kings are not sovereign, legislatures are not sovereign; kings and legislators lack constitutional authority to take away certain rights and liberties.

The Patriots of Massachusetts were familiar with Coke. Coke was, among his many accomplishments, author of the Institutes of the Laws of England. It was the go-to reference book for colonial attorneys like James Otis and John Adams.

Like Coke, our predecessors – Otis, Adams, and company – saw Magna Carta as more than a symbol or an icon. They saw it as a practical legal document: an enduring, enforceable law; something fundamental, reflecting rights that are inherent, not the gift of any government. The inherent rights, or birthright, of Englishmen.

How could the people of Massachusetts – the politically vocal, enfranchised ones, at least – claim to enjoy the rights of Englishmen? Because they were English Americans and saw themselves as such. Recall the seal of 1775: “an English American,” in the words of the provisional government, with a sword in one hand and in the other Magna Carta.

So to them, this new notion of Parliamentary supremacy or sovereignty, was unacceptable. When the English in England passed the Declaratory Act in 1766, the English in America perceived it as a renunciation and betrayal of Magna Carta. The subsequent American Revolution was a revolution in the same sense that the Glorious Revolution was a revolution. Revolving the relationship between government and governed, turning what had been upside-down right-side up.

__________

If ever you find yourself in English countryside, take a look in the nearest village church. You have a good chance of finding a stone monument of some kind – an effigy or at least a plaque – commemorating an old knight of the shire, maybe even one of those barons who forced King John to come to terms at Runnymede. If you read the words carved into the stone, you may well see the Latin inscription, “Magna Carta Est Lex, Deinde Caveat Rex,” meaning “Magna Carta is the law, let the King look out!”

Look for that expression on old tombs. But don’t bother searching for those words, or for Magna Carta itself, in the statute books. Over the course of the 19th and 20th Centuries, Parliament whittled away at Magna Carta, repealing clause after clause. What the British people – even those who never read their Kipling or their Churchill – once considered fundamental, a legal backbone or heart and soul, no longer has the force of law. Today in modern Britain, the only law that judges deem so fundamental that they will strike down legislation they deem incompatible with it is the European Communities Act of 1972, which binds Britain to the European Union and makes European law supreme.

Eight hundred years after Runnymede, the Britain of today is a cautionary tale, so I conclude with a warning. The rights that Magna Carta describes are fragile. They are not safe and secure.  If they were, there would have been no need for the Petition of Right, no need for the English Civil War, no need for the Glorious Revolution, and no need for the American Revolution: no need for the fellow in the seal to be holding a sword. If they were, in England Magna Carta would still embody the law of the land, not serve as a mere museum piece, a relic.

To conclude, here is the whole of Kipling’s poem What Say the Reeds at Runnymede, a poem that was once stirring but is now more poignant. The conceit is that the reeds in Runnymede marsh remember the rights embodied in Magna Carta and if those rights come under threat, the reeds will stir, and tell the great River Thames that rolls through London past the Houses of Parliament, and the Thames will warn those in power, in effect, “don’t mess with England.”

At Runnymede, at Runnymede,

What say the reeds at Runnymede?

The lissom reeds that give and take,

That bend so far, but never break,

They keep the sleepy Thames awake

With tales of John at Runnymede.

At Runnymede, at Runnymede,

Oh, hear the reeds at Runnymede:

“You mustn’t sell, delay, deny,

A freeman’s right or liberty.

It wakes the stubborn Englishry,

We saw ’em roused at Runnymede!

When through our ranks the Barons came,

With little thought of praise or blame,

But resolute to play the game,

They lumbered up to Runnymede;

And there they launched in solid line

The first attack on Right Divine,

The curt uncompromising “Sign!”

They settled John at Runnymede.

At Runnymede, at Runnymede,

Your rights were won at Runnymede!

No freeman shall be fined or bound,

Or dispossessed of freehold ground,

Except by lawful judgment found

And passed upon him by his peers.

Forget not, after all these years,

The Charter signed at Runnymede.

And still when mob or Monarch lays

Too rude a hand on English ways,

The whisper wakes, the shudder plays,

Across the reeds at Runnymede.

And Thames, that knows the moods of kings,

And crowds and priests and suchlike things,

Rolls deep and dreadful as he brings

Their warning down from Runnymede.

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