CHAPTER TWO Magna Carta

That irreverent “Memorable History of England” containing “103 Good Things,... 5 Bad Kings,... [and] 2 Genuine Dates”—τ066 and All That— lists King John as a Bad King but fails entirely to give 1215 as a Genuine Date.

Magna Carta claims a unique place in Anglo-American legal and consti­tutional tradition. But its role has been different on the two sides of the At­lantic because British and American constitutionalism have taken different paths from a point of common departure in the seventeenth century. It is a truism that British constitutionalism is not based upon “fundamental law” and that the whole law—understood as the rule of law—is fundamental to its vitality. Perhaps that is true, and as far as it goes that is determinative. However, even in British law, there has been no law more fundamental than Magna Carta. The circumstances surrounding its promulgation were unique in British history. It was a comprehensive concession of rights wrung from a reluctant monarch by a baronage (for all practical purposes, the political nation) in open rebellion. The concessions were the price of civil quiet, the cost paid by John for his continuation upon his throne, the settlement of a revolutionary situation, which, in the event, failed to avert civil war.

This content downloaded from and after Runnymede, no such comprehensive concessions were exacted from a King as ransom for his throne. The two other great documents of English liberty which come close to Magna Carta in being accorded attri­butes of fundamentality did not constitute ransom in a revolutionary situ­ation. The Petition of Right of 1628 was moved by a Parliament vociferous in its sense of grievance but not in rebellion against Charles I, and the Bill of Rights of 1689 was not understood to be a quid pro quo for William III's assumption of the throne vacated by the convenient “abdication” of James II in 1688.

Magna Carta was unique, too, in being so often re-promulgated or confirmed in the decades after its creation. In November 1216, John's son and heir, Henry III, confirmed it for the first time, in order to consolidate his accession to the throne and to rally the baronage against the invasion of the heir of the French king in prosecution of his claim to the English throne. With the expulsion of the French in the next year, Henry reissued Magna Carta (shorn of the clauses concerning forests, which were drawn into a separate Charter of Forest Liberties). In 1225, Henry would give, in his third confirmation, the final form to Magna Carta. By 1301 Magna Carta and the Charter of the Forest had been reissued or confirmed at least fifteen times, usually as consideration for a grant of revenue to the king. What is most striking about these repeated re-promulgations of Magna Carta was the wide publicity given to its provisions by proclamation in the country­side. If later, revisionist, historians argued that Magna Carta was a charter of liberties only for a small baronage, in furtherance of the interests primar­ily of the feudatories, its frequent reissue during its first century, with the widest publicity the age allowed, impressed it on the fabric of the entire polity as the source of liberties under law of all English freemen.

Magna Carta could not have survived, neither would it have acquired (if only for a season) the attributes of fundamentality in English constitu­tionalism, had it remained merely part of the English historical ethos and a pious declaration, oft-repeated, of liberties in the high Middle Ages. It required implementation, as law. This it also received with remarkable con­sistency in its first century. Neither the instrument consented to by John at Runnymede in 1215 nor the final version of the Great Charter confirmed in 1225 by Henry III are technically “statutes,” if one accepts the proposition that without Parliament (an institution still a half century away even in its most inchoate form) there could be no statute. Yet from the fourteenth century onwards, manuscript collections of the statutes usually began with Magna Carta. The early common lawyers were unaware of our later techni-

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cal niceties, that statutes were to be made by the King by and with the ad­vice and consent of the Lords Spiritual and Temporal and the Commons in Parliament assembled, but the common lawyers understood that the pro­cess by which the Great Charter had come into being, the colloquy of King, prelates and barons in 1215, constituted as broad a consensual base as the practice of government at that time allowed and broader than that which undergirded the great legislative enactments of a half-century earlier under John's father, Henry II, which marked the true beginnings of the common law. As Lady Stenton noted, “The common law received in Magna Carta its first generally recognized statute, written law, authoritative at the date of its publication.”²

Although henceforth statutes became an increasingly common device for changing the law as need required, and some of those changes modi­fied some of the provisions of Magna Carta, that first statute itself proved unrepealable and its intended rights indestructible. Edward II and Parlia­ment by ordinances in 1311 declared that statutes made by the King's ances­tors that were not contrary to Magna Carta, the Charter of the Forest, or the other provisions of these ordinances were to be maintained.

Apotheosis exacted a price. Because Magna Carta became so much an accepted and routinely incorporated part of the common law, the percep­tion of its uniqueness was dulled. Magna Carta itself became a liability in late medieval pleading: counsel who argued the Charter were chided by the judges for taking “frivolous exceptions.” The rhetoric of liberty under law used in the courts of law was so much a commonplace that it had become a cliche by the end of the fourteenth century. The Charter was also of ques-

This content downloaded from tionable relevance when the kingdom faced the hard political realities that came with the Houses of Lancaster and York struggling for the throne in the fifteenth century. Then the threat to liberty under law came less from the King than from the feudatories who fuelled and fought the dynastic civil wars and who bought and sold justice by corrupting juries and intimi­dating judges, lawyers, sheriffs, and litigants by the menace of their private armies.

After two centuries of being largely ignored by Parliament and the courts, Magna Carta enjoyed a phenomenal revival in the seventeenth cen­tury. A century of rigorous Tudor governance worked a religious revolution from the top in the Reformation, expanded enormously the political nation by Tudor monarchy's reliance upon Parliament (a legislature increasingly dominated by a broadly based landed gentry endowed with the spoils of ecclesiastical lands) and, inevitably, introduced political abuses which Par­liament-men found increasingly intolerable under the Tudors' successors, James I and Charles I. Why such a fundamental law of the land as Magna Carta would be refurbished to do battle against what was perceived to be a growing tyranny in state and Church is not difficult to explain. How it was possible for Magna Carta, so long ignored and so much neglected, to be revived is more complex. If Magna Carta was to be mobilized and sent into battle against Stuart “despotism,” its provisions and the history sur­rounding its origins would have to have been strongly impressed on the consciousness of the greater political nation.

Early seventeenth-century Englishmen did not have far to look for their history of John, the barons, and Runnymede. For the Latinist, Matthew Paris's Angli HistoriaMaior, a contemporary chronicle of the reigns of John and Henry III, was printed in 1571, and his highly derogatory portrait of John was unforgettable. Much more significant was the publication in 1577 of Raphael Holinshed's Chronicles of England, Scotlande, and lrelande. Writ­ten in English in a clear, even exciting, prose, Holinshed was a best-seller. The second, expanded, edition of 1587 enjoyed even more success, and was the source for Shakespeare's history plays. Holinshed was a new-style hu­manist historian, with much didactic purpose, a desire for comprehensive­ness of treatment, a good sense of evidence, and a genuine concern to avoid anachronism.

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KingJohn is there mention of Magna Carta. The explanations are either fat­uous (Shakespeare did not regard the Charter “as good theatre”) or merely wrong (the Charter was forgotten or “there was no Magna Carta to bother Elizabeth”).⁶ Thanks in large part to Holinshed, Magna Carta was well re­membered, evocation of it certainly did bother Elizabeth, and Shakespeare probably thought it politically discreet not to provide a highly dramatic scene of a reluctant John sealing the Charter surrounded by glowering, menacing barons!

For the provisions of Magna Carta had never disappeared from the law­yers’ view. Following the long tradition of the manuscript collections, the first comprehensive printed collection of statutes, Richard Pynson’s Magna Charta cum aliis Antiquis Statutis (1508) established the practice followed invariably for three centuries (until the publication, 1810-1820, of the au­thoritative compilation, Statutes of the Realm) of beginning the statutes with Magna Carta, the 1225 version. Pynson’s work, continued by other printers, sometimes translated into English (from 1534), ran to at least twenty edi­tions by 1587. Abridgments of the statutes — also beginning with Magna Carta—appeared in even greater numbers and more editions. By the end of Elizabeth’s reign, no lawyer would have been without some such collec­tion, and Magna Carta would meet his eye as soon as he opened the book. Little wonder that Edward Coke of the Inner Temple began to make notes on the early statutes, with pride of place to the Great Charter. Yet long be­fore Coke’s famous Second Institutes, a thorough if rambling commentary on Magna Carta and the other early statutes, was published (posthumously, by order of the Long Parliament) in 1642, the Great Charter had been in­creasingly raised in court and Parliament. It would be sent into full battle by Coke and other MPs during the Parliaments of the 1620’s. But it fell to two lesser lawyers to fight the first skirmishes soon after Holinshed and the printed statutes worked a new appreciation of Magna Carta.

Robert Beale, Clerk of the Privy Council, and James Morice, Attorney of the Court of Wards and Liveries, in the 1580’s and 1590’s attacked the Court of High Commission for exacting an oath of the defendant to ac­cuse himself. By treatises and as Members in Parliament they repeatedly summoned Magna Carta, Clause 39, as their authority against such self­incrimination. Their attacks, which earned them both reproof and Morice imprisonment, were the first steps in that expansion of Clause 39 which led ultimately to the Fifth Amendment of the United States Constitution. They also sounded the tocsin that would be tolled throughout the next century in opposition to Stuart abuses. Magna Carta was revived.

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Magna Carta served in three ways as a weapon against what was per­ceived as arbitrary Stuart government. First, as “law,” it was held to deny authority to the monarch to impose taxation without parliamentary con­sent and to imprison or put on trial the subject without due process of law. In the first case it protected the property of the subject, in the second his liberty. These were the two foci of the political and constitutional confron­tation in Stuart England between the political nation and the King, and therefore Magna Carta fit the real concerns of the age perfectly.

Secondly, as “fundamental law”—for such Coke and other lawyers ar­gued Magna Carta was—it provided as much constitutional theory in de­fense of liberty as the political nation of landowners, lawyers, and merchants were prepared to accept as respectable and sufficient until John Locke's Two Treatises on Civil Government, published after the Glorious Revolution of 1688, totally recast English constitutional and political theory. Magna Carta strongly reinforced the fifteenth-century notion, revived in the seventeenth, that England was a mixed monarchy, in which the King ruled in concert with the estates represented in Parliament. It was hailed as the first statute, the product of consensus between King, barons, and the Church in 1215, so often reiterated in medieval practice. Both the Petition of Right of 1628 and the Bill of Rights of 1689 were raised on this intellectual foundation, and were seen by contemporaries as being explanations or refinements in particulars of the Great Charter, suited to the new age.

Thirdly, as “history,” Magna Carta was the seventeenth-century En­glishman's link with the supposed ancient laws and liberties of Anglo-Sax­on times, a system of belief in which Parliament and the common law were claimed to be as old, if not older, than monarchy itself. The event at Run- nymede was celebrated as the moment when the yoke of Norman tyranny was lifted from the necks of the English people. What had been done on a grassy island in the Thames in 1215 could be done again, this time in the Parliament House by the Thames. Until 1642, the political nation could pride itself on its growing success in withstanding tyranny, and in avoiding a civil war such as had raged between John and the barons after Runny- mede. With 1642, that comforting illusion was shattered. The civil wars of 1642-1648 replayed 1215-1216, with the even more dreadful result of a King dethroned, tried and condemned as the enemy of his people, and publicly executed, with a republic set in the place of monarchy.

It was with these events and the decade of republicanism which fol­lowed that Magna Carta's role began in the New World, on a course very different from that which it took in the Old. The revolutionary episode of

This content downloaded from mid-seventeenth century England turned the nation inexorably away from constitutionalism based on fundamental law. A decade of republican exper­iment produced five years of haphazard institutional change best described as chaos and one written constitution, the Instrument of Government of 1653, which was a triumph of mixed monarchy with the monarch called the Lord Protector in the person of Oliver Cromwell. Legitimacy eluded the regime; the regime did not survive Cromwell’s death. With the Restoration of Charles II in 1660, not upon explicit conditions but by a tacit under­standing that he would abide by the early legislation of the Long Parlia­ment which had corrected the abuses of his father, legitimacy was restored in the person of the monarch and in the institution of monarchy. Written constitutionalism based upon fundamental law, tainted by its origins in the Instrument of Government, was discredited. The Restoration settlement avoided it.

English constitutionalism returned to dependence upon the rule of law, the preservation of liberties by the working of law that was less than fundamental law. Magna Carta was cast back to its more modest role of mere “law” protecting the property of the subject and the liberty of his person. It achieved some notable successes: the Habeas Corpus Act of 1679 and, above all, the Bill of Rights of 1689. But it could do no more. If English liberties were to be maintained and even advanced, political rather than constitutional practice would have to provide the impetus and the consolidation of gains. With the rise of Parliament to an indispensable routine function in government, with ministerial responsibility to Parlia­ment, with the enlargement of the Parliamentary franchise, and ultimately with the sovereignty of Parliament over the sovereign King—all of which was accomplished over the two centuries after 1688—political practice was perfected. British constitutionalism, allowing for the protection of liber­ties by the rule of law, had come to eschew both a written instrument and fundamental law and to rest upon restrained, customary, political activity in a House of Commons elected by a democratic franchise and organized by two competing major political parties. Magna Carta had done its work: it could be enshrined as a once-mighty instrument of liberty of extraordinary historical significance to the nation but no longer of much real utility.

It was otherwise in the New World. All of England’s early colonies there were founded upon charters, not a Great Charter, but each a little charter created by the exercise of the royal prerogative in the form of a written in­strument of letters patent, the charter defining the powers of government to be exercised by the undertakers of the colonies. Such a charter was, from

This content downloaded from the perspective of the colonial company and the colonists, “fundamental law.” Under the charter, sometimes despite it, practical measures of govern­ment were instituted for the unusual exigencies facing the creation of a new polity in a wilderness. The distinction between the normative requirements of the charter and the real institutions and practices of government made the charters even more “fundamental” by making them remote from the routine of governance, and sometimes far away from the hands of those charged with government in the colony. This was true whether the colonial charter remained in London (as in the case of Virginia) or was carried to the colony (as in Massachusetts). Moreover, since the charter was a written instrument, it constituted a written fundamental law. The colonial charter was one foundation of American constitutionalism, and probably the single most important one.

The other was Magna Carta. At the time that Virginia and Massachu­setts and the other early colonies came into existence, Magna Carta enjoyed its greatest and widest importance in English political life. In its threefold role discussed above, Magna Carta had something for all Englishmen, on both sides of the Atlantic. For those who were starting anew, it offered even more: they were beginning to build polities from the ground up and they were concerned to preserve the laws and liberties of Englishmen. This was a theme that ran through the early charters and, even more significantly, the early laws and practices of the colonies. To these men, Magna Carta was fundamental law. They sought in their new cities-upon-a-hill to pre­serve it as native Englishmen and to imitate it in their own laws as colonial Englishmen. Thus, John Winthrop, the guiding mind and hand of the Mas­sachusetts Bay colony, noted in his journal in 1635:

The deputies [of the General Court] having conceived great danger to our state, in regard that our magistrates, for want of positive laws, in many cases, might proceed according to their discretions, it was agreed that some men should be appointed to frame a body of grounds of laws, in resemblance to a Magna Charta, which, being allowed by some of the ministers, and the general court, should be received for fundamental laws.⁷

The fruits of that endeavor were two-fold: Nathaniel Ward's “Body of Lib­erties” of 1641 and the first printed comprehensive compilation of laws of any English colony, The Book of the General Lawes and Libertyes Concerning the Inhabitants of the Massachusets, 1648. The titles almost say it all. The “Body of Liberties” was very much more graven in the image of Magna Carta than was the Lawes and Libertyes, but the latter contained all but nine of the ninety-five substantive clauses in the former.⁸ America's first statute

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book provided not only good laws to govern by, but also law to preserve basic liberties. Clearly and forcefully, this echoed the Great Charter. The sitting of the General Court that ordered the printing of the Lawes and Libertyes was also quite unambiguous about what it intended when, “to the end we may have the better light for making & proceeding about lawes,” it ordered that two copies of “Coke upon Magna Charta” be procured for its use.⁹

Americans never retired Magna Carta to a pantheon of past blessings of slight current utility. As the Great Charter waned in practical applicability in eighteenth-century Britain, it gathered strength in the American colonies as a bulwark against imperial abuses. John Adams in a spirited defense against trial without jury in the vice-admiralty court in Boston in 1769 asserted that “The People of England are attached to Magna Charta.” He quoted Clause 39 verbatim, cited Coke to the point, and closed with a demand for the summoning of a jury and that the defendant “be tryed by Magna Charta.”¹⁰ The English in America were in fact more attached to Magna Carta than the English in England.

Long after the liberties of the American nation were founded upon the Constitution of 1789 and its first ten amendments—the latter owing so much, some explicitly, more implicitly, to the Great Charter—Magna Carta is still accorded a reverence in the United States that continually astonishes Englishmen by its fervency. On July 28, 1957, a host of British and Ameri­can legal dignitaries gathered on the tiny island at Runnymede to dedicate a monument to Magna Carta erected by the American Bar Association, which met in London that summer. The Americans were visibly moved as the drape fell from a simple stone column bearing, under a prominent (and very American) star, the legend “To commemorate Magna Carta, symbol of freedom under law.” A casual, youthful observer did not appreciate at the time the irony of it all. He does now. For the column, which is mas­sive, is protected from proverbial English weather by a delicate classical rotunda, open on all sides between the columns supporting the cupola, a veritable pantheon indeed. Both peoples, the fathers of Magna Carta and the scions who have cherished the patrimony, are nicely caught, doubtless unconsciously, in the architectural structure: the English in the temple, the American in the altar.

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