Magna Carta and America

Our annual July 4 commentaries on the American Revolution seek to highlight the role of common people in the Revolutionary process:  women who refused to buy household goods imported from Britain, a local blacksmith in western Massachusetts who led an early sit-in-type revolt against British authorities in that region, lay people who discovered they could preach during the associated Great Awakening period.

This year, 2015, marks the 800^th anniversary of the Magna Carta and that event has a link with common people and contributes to the American Revolution.  Thus, it can be our topic for this year's Revolution article.   The agreement between King John and a group of barons was sealed on June 15; this very first document was a group of "Articles of the Barons".  It was recast and publicized on June 19 as "Magna Carta", the Great Charter.  Just last Monday, June 15, 2015, there was a special commemoration at Runnymede, and you have also perhaps read articles about the document which have already appeared in major press outlets.  Obviously, I am not a historian, but on such a propitious occasion, I would offer some thoughts.

Some of these current commentaries want us to downplay the role of Magna Carta, and writers of those might take issue that I link the document to "common people".   Those critics are in fact correct:  we cannot say that Magna Carta marked the foundation of democracy, nor that it represented a granting of freedom to "common people".  Not at all.  What it did was exact from a ruler an official statement that the position of ruler was itself subject to expressed laws, that the actions of the ruler could not be arbitrary and that the ruler could not impose indiscriminate demands or fees on those ruled.  In the very beginning on June 15, 1215, the document applied to "any baron", an elite group, to be sure.  But the scope widened immediately: just days later, on June 19, this became "any freeman".[1]  While broader than just the 40 barons, the group "freemen" was still not very large; the vast majority of people came under various conditions of feudal servitude.  Then, in the 1350s, during the reign of Edward III, "Six Statutes" were enacted by Parliament that included the phrasing "no man of what Estate or Condition that he be, shall be put out of Land or Tenement, nor taken nor imprisoned, nor disinherited, nor put to Death, without being brought in Answer by due Process of the Law."[2]  Thus, virtually everyone would now benefit, and even common people had rights that had to be respected by rulers.

There's another important phrase in that quote, of course:  "due Process of the Law".  While those exact words are not in Magna Carta, the concept is.  In Article 39, it says, "No free man will be taken or imprisoned or disseised or outlawed or exiled or in any way ruined, nor shall we go or send against him, save by the lawful judgement of his peers and by the law of the land."  So here is the invention of "due process".  Article 40 further exerts a "rule of law": "To no one shall we sell, to no one shall we deny or delay right or justice."  Defendants can't get off by paying a bribe, nor can anyone be held because they can't pay one.  Note that from the beginning, from Magna Carta itself, such even-handed dispensing of justice applied to everyone, with no restriction to "barons" or "freemen".[3]

There is at least one other major item in Magna Carta.  The barons were upset with King John because of the sudden and arbitrary imposition of "aids" and the high rates of "scutage" he demanded.  Scutage is a fee a baron could pay instead of providing military service.  John spent lots of money, but he lost lands and other resources in his conduct of various wars and battles.  The barons wanted some protection from his consequently exorbitant takings.  Thus, Article 12 reads, "No scutage or aid is to be levied in our realm except by the common counsel of our realm."  And Article 14 goes on to outline how representatives of the realm would be chosen for and given adequate notice of meetings to design the required funding orders.  This part was not particularly democratic in construct, but it still formulated the operation of "no taxation without representation".

Colonists arrived in North America carrying these rights with them.  In writing.  Every one of the 13 colonies was organized as a "company" granted land and legal right by the Crown.[4]  This was implemented through a "charter".  The charters included clauses with some phrase granting due process of law.  And more explicitly, they included statements that the settlers and their descendants were entitled to the ancient rights of English people.  The charter of the Virginia company was quite explicit: The emigrants and their children "shall have and enjoy Liberties, Franchises, Immunities, . . . as if they had been abiding and born, within our Realm of England."  In Massachusetts Bay in 1629, the Charter said settlers would "have and enjoy all liberties and immunities of free and naturall subjects . . . as yf they and everie one them were borne within the Realm of England."  These Charters thus granted the rights of English citizens to the colonists, and they also established the practice of written constitutions.

American colonists' reliance on Magna Carta is easily illustrated in a statement that Ben Franklin made to Parliament during the wrangle over the Stamp Act.  Franklin, a representative for Massachusetts in the Royal Court in London, "was hauled in front of Parliament and asked on what basis he called for the repeal of the Stamp Act.  The colonists, he answered, could not 'be taxed but by their common consent [. . . based on their rights] as Englishmen as declared by Magna Carta.'"[5]

Several contemporary writers indeed point out that the Magna Carta seems more revered in the U.S. than in Britain.  One in particular is a British member of the European Parliament, Daniel Hannan.  In a recent Wall Street Journal article[6], he says, “Magna Carta has always been a bigger deal in the U.S.”  He explains that the site at Runnymede went unmarked until 1957, and when a memorial stone was finally erected, it was the American Bar Association who sponsored it.

A New York Times writer, Sarah Lyall, highlights further the longstanding importance of the Magna Carta here.[7]  Just last month, she explains, the Supreme Court cited Article 40 in one of its own decisions, on judicial integrity:  “Upholding a Florida law that forbids judges to solicit campaign contributions, Chief Justice Roberts … wrote: ‘This principle dates back at least eight centuries to Magna Carta.’”  Lyall further quotes William Hubbard, current president of the American Bar Association: “The idea that the law comes from the people, and it’s not the law of the king, is fundamental.”

Thus, while governments changed and revolutions occurred in England and in America, the principles set forth in Magna Carta not only live on but assist in our government and in protection of common people to this day.  Lyall quotes Hubbard in conclusion, “To think that those principles have survived 800 years gives me great hope for the future.”

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[1] U.S. National Archives and Records Administration.  "Magna Carta and Its American Legacy".  www.archives.gov/exhitits/featured_documents/magna_carta/legacy.html. Accessed June 5, 2015.

[2] Ralph V. Turner.  "The Meaning of Magna Carta since 1215." History Today. Volume 53, Issue 9, September 2003.  Reprinted on http://www.historytoday.com/ralph-v-turner/meaning-magna-carta-1215.  Accessed June 20, 2015.

[3] All quotations of actual paragraphs of the Magna Carta come from Nicholas Vincent: Magna Carta: A Very Short Introduction.  Oxford: Oxford University Press. 2012. Pages 111 to 124.  There are 63 paragraphs in the original document, one of which, number 35, actually establishes a standard size for a glass of wine, "namely the London quarter," and also standard measures of cloth.

[4] Matthew Shaw.  "Early America and Magna Carta".  British Library:  http://www.bl.uk/magna-carta/articles/early-america-and-magna-carta.  Accessed June 22, 2015.

[5] Shaw, op.cit.

[6] Daniel Hannan.  “Magna Carta: Eight Centuries of Liberty.” The Wall Street Journal.  May 29, 2015.  www.wsj.com/articles/magna-carta-eight-centuries-of-liberty-1432912022. 

[7] Sarah Lyall.  “Magna Carta, Still Posing a Challenge at 800.”  The New York Times. June 14, 2015.  http://nyti.ms/1QYLYGs.