Nicholas D. Ward

This essay was presented at a meeting of the Daughters of the Barons of Runnemede, a lineage society for female descendants of the Magna Carta sureties. Nicholas D. Ward has been a practicing attorney in Washington, D.C. specializing in trusts and estates and fiduciary litigation for over forty years. His various legal writings have been cited by the D.C. Court of Appeals and the Supreme Court of New Jersey. A few years ago he had occasion to cite Magna Carta in a brief filed with the U.S. Supreme Court, but the case was decided upon other grounds.

We are here today preparing for the 800th anniversary of the issuance of the original 1215 issue of Magna Carta. It is most fitting and proper that we do this for Magna Carta has loomed large in the history of both the United Kingdom and the United States. While to our cousins their constitution is famously known as an "unwritten constitution" because it consists of not only the Great Charter, but also of the Petition of Right of 1628, the Habeas Corpus Act of 1679, the Bill of Rights of 1689 and the Act of Settlement of 1701, they tend to wonder why Americans make such a big deal of Magna Carta. Even in 1689, when the House of Commons asserted that James II had broken the contract of his governance, the Lords said while the contract might be a most liberal and rational concept they could not find it in the laws of England. Americans, however, have always preferred to look to a written source, in this case our Constitution, as a source of their rights. Perhaps this is reflected in the old saying "the French fought for revenge, the British fought for glory, and the American's fought for souvenirs."

But we may yet wonder how Magna Carta came into its glory. It was not called the Great Charter in the 13th Century because of its significance, but because of its size to distinguish it from its companion Charter of the Forest (1217). After all, as J.C. Holt has reminded us:

In 1215 Magna Carta was a failure. It was intended as a peace and it provoked war. It pretended to state customary law and it promoted disagreement and contention. It was legally valid for no more than three months, and even within that period its terms were never properly executed.

In August 1215, the Pope declared it void as having been obtained through force and threatened excommunication for any who adhered to it, and King John resumed his fight with his Barons which was terminated mercifully by his death in 1216. Nevertheless, Magna Carta was reissued in 1216, 1217, and adopted as law in 1225 by Henry III when he came of age, with a reduction in the number of chapters from 64 to 37. It was subsequently reissued and confirmed in 1237, 1267 and in 1297 and countless times in the following two centuries. Along with the Charter of the Forest, it remained in place in the next centuries when many of its features were developed by statute and the courts, until the Tudors, when it was largely ignored. Perhaps after the War of the Roses it may be supposed that the realm craved the stability of a strong, central government.

The Great Charter was inspired by feudalism as that system was refined in England by the Conqueror. Under feudalism the King has no peer and is answerable only to God for his transgressions. But he has an agreement with his barons that in exchange for their fealty he will govern in accordance with law and custom, which is embodied in his coronation oath. All the medieval kings, until William and Mary in 1689, signified their consent to so govern by an oath to govern by the laws of Edward the Confessor, whose death in 1066 precipitated the feud between Saxon King Harold and Norman Duke William, leading to the Battle of Hastings. With King John came the Angevin greed for money that made a mockery of feudal custom and of the king as a feudal lord. Magna Carta was an attempt to require King John to cease his abuse of the feudal incidents that produced his income by a grant to them, in a carefully defined list in writing, of his feudal obligations and to swear to govern by them. The provision that the Sureties were given the right to levy war on King John should he not abide by the terms of the Charter was part of the feudal custom that when the lord would not honor his obligations to his vassels, the vassels were legally entitled to force their feudal right by arms. But that clause was removed from the later re-issues of the Charter.

Magna Carta was not a National Document; it was a feudal document aimed at the restoration of government according to established feudal usages. It did not create Parliament, it only regularized the summoning of a great council. It did not establish the principle that there could be no taxation without consent and representation; it merely stated that the baronial great council must give its consent to extraordinary feudal aids and scutages. When the council consented to the levying of a scutage it meant only that the barons agreed that a campaign was warranted and that therefore scutage could be collected from those who preferred not to provide knights' service. But no baron was bound by the great council's consent to scutage; he could always supply his quota of knights.

It did not guarantee trial by jury, nor did it embrace such other modern legal principles as habeas corpus, equality before the law, or due process of law as it now functions. Chapter 39 simply provided that legal judgment must precede execution. Law of the land meant custom and accepted law. From this much later in the middle ages came due process of law.

The importance of Magna Carta was due chiefly to its enunciation of the fundamental principle that there was a body of law above the King - that the King is, and shall be, below and therefore subject to the law. Here was spelled out the belief that the King was not absolute, but was under the law of the land. Magna Carta is not the source of limited monarchy - that came with Parliamentary control over the King. But Magna Carta was adaptable, and that was its greatest and most important characteristic.

The Great Charter was a living idea and a lively one, and it helped build up two cardinal constitutional principles - government by agreement, or contract, and the rule of law. It also suggested that the barons would abide by majority rule. For four hundred years the form and tenor of Magna Carta provided an undefined and all-embracing authority that took the place of a constitution.

After the Tudors and the Reformation, William S. McKechnie notes that:

The political leaders of the seventeenth century discovered among its [Magna Carta' s] chapters every important reform which they desired to introduce into England, disguising revolutionary projects by dressing them in the garb of the past."

In the early 17th century Sir Edward Coke, rival to Sir Francis Bacon, used the writings of Sir John Fortesque's De Laudibus Legum Angliae (c. 1470) and Sir Thomas Littleton's Tenures (c. 1480) in his Second Institute on Magna Carta, posthumously published in 1642, to create a myth of Magna Carta as the origin of English liberties. His view of history was "flat" in the sense, as Holt suggests that he "had to assume that the past was like the present" and "was derived from the continuous unchanging element of fundamental law." His interpretation of Magna Carta is viewed as considerably flawed by scholars today. But he created the myth that is still with us of the greatness of the Charter.

As Holt suggests:

Coke was seeking the continuous thread in English law. He was concerned with precedent, with principles and judicial decisions which in his view indissolubly linked his world with the past.

. . . Magna Carta was an affirmation of fundamental law and the liberty of the subject.

Coke assumed that English liberty existed from the earliest times, but when he asserted that the Charter re-established ancient rates of relief he was misled. Thus his attribution of the rights of the subject and Parliament to Magna Carta created the "myth" of Magna Carta, an interpretation of it which gives it qualities which the men of 1215 did not intend, but that was precisely the document's potential. The Parliaments of the 17th Century pushed the envelope as to their liberties, often in marvelous parlance. In the Apology of the Commons in 1604, in which the Commons asserted that their privileges and liberties were their rights and due inheritance they stated:

The prerogatives of princes may easily and do daily grow; the privileges of the subject are for the most part at an everlasting stand. They may be by good providence and care preserved; but being once lost, are not recovered but with much disquiet.

In the Petition of Right (1628), the Commons, relying on Magna Carta, asserted that no aid shall be levied by the King without the goodwill and assent and authority of Parliament. They claimed that their consent to taxation was required; that Edward III had granted due process of law before judgment and later, in the Bill of Rights (1689), declared rights and liberties of the subject when settling the succession of the Crown. While Magna Carta was not mentioned in this latter Act, the reach of its myth was that the rights and liberties of the subject were stated in a fashion which suggested the antiquity of the same. In particular, the Bill of Rights states that James II, acting pursuant to his prerogative powers, when suspending and dispensing the law, was acting illegally.

By the end of the 17th century the supremacy of King in Parliament was established, and in it sovereignty lay. The Whigs now relied upon another basis to support the rights of Parliament, namely, natural law as enunciated by John Locke's Second Treatise of Civil Government, published after the Glorious Revolution.

Holt's explanation of how the Whigs moved beyond Coke is insightful. He states:

The contrast between Coke and the Whigs could be carried much further, for Coke did not and could not partake of the powerful element of natural law in the Whig interpretation which underpinned their emphasis on individual liberty. Natural law, an essential component of the Whig interpretation, was, as we shall see, lethal to the survival in England of the common-law attitudes typified by Coke. Moreover, Coke and the Whigs differed in their methods. The essence of Whig history was to read the present back into the past and to interpret the past in the light of selected themes: the growth of liberty, the development of Parliament and, within Parliament, of the House of Commons, the growth of "nationhood," and so on. The Whigs turned to history not to justify the present; Locke's Second Treatise did that for them; but to explain how the present had evolved. Coke's object was quite different. He was not primarily concerned with writing history or interpreting the past. His aim was to call in the past in order to support his argument about the present."

But as Americans were to discover, the Glorious Revolution of 1688 was not for export.

The King was restrained by Parliament in governing England, but the King retained his prerogative through his Council to govern in territories. Territories, when made part of the realm, are represented in Parliament, but territories in dominion status are not so represented. A conquered territory retains its laws until they are changed by King in Council; but territories acquired by descent, such as Scotland, retain their laws until changed by the King in Parliament. The American colonies were founded under the prerogative power of King in Council and deemed acquired by conquest. Acts of Parliament would have no applicability to the colonies unless named in the Act, thus, the King in Council (Lords of Trade which governed the colonies) could legislate for the American colonies. Recently Nelson has noted that when Parliament asserted a right in the times of James I and Charles I to regulate American fisheries these Kings wielded their prerogative to insist that the colonies were not subject to parliamentary governance. Coke had, however, a hand in the drafting of some of the early American charters in which he had written that the colonists were to be regarded as Englishmen who:

. . . shall have and enjoy all liberties, franchises, and immunities, within any of our other dominions, to all intents and purposes, as if they had been abiding and born, within this our realm of England, or any other of our said dominions . . .

as stated in the Charter of Virginia (1606). Later charters contained similar statements, some referencing Magna Carta, New England (1620), Massachusetts Bay (1629), Maryland (1632), Connecticut (1662), Rhode Island (1663), Carolinas (1663) and Georgia (1732). Coke's interpretation of the rights of Englishmen afforded by Magna Carta proved most congenial to the new American climate.

But there was a problem. While not all agreed that:

. . . the colonists going to America took with them the common law and Parliamentary enactments up to the date of their migration; but they consistently agreed that no acts of Parliament subsequent to settlement extended to any colony unless the Act specifically named the colony.

But notwithstanding these Magna Carta references in the early charters, by the time of the Glorious Revolution when these charters were being re-examined, the King (William III) refused to extend Magna Carta to the colonies because that would equate colonists with Englishmen and guarantee them the same rights and liberties and that the King was not going to do. Lovejoy states:

The Glorious Revolution may have liberalized the English constitution and permitted Parliament to clip the wings of the Crown, but the imperial constitution for overseas dominions had changed very little.

Since the rights of Englishmen had evolved by then since the founding of these colonies the King may be spotted as having a point i.e. the colonist rights were only those they possessed at emigration.

Further trouble, however, developed thereafter when later charters of the Carolinas contained references to the 17th Century Parliamentary legislation.

But a collateral effect of a reliance on Natural Law to justify the source of liberties resulted in the irrelevance of precedence and the ancient law. Holt suggests that the radicals took up Magna Carta as a basis for complaint against both King and Parliament, who could in their eyes be just as tyrannical as the King. And this view eventually came to America. As Holt said:

. . . The fight was not in defense of law and Parliament against the King; but for the rights of the colonists against both King and Parliament. Both for the radicals in England and for the Americans the chief value of the Charter lay in the fact that it was a concession, which had been granted or confirmed in the past; it was, as it had always been, a fault in the armour of authority. And just as the Charter was claimed by the English Radicals as a natural birthright, so in America some of its principles came to be established as individual rights enforceable against authority in all its forms, whether legislative, executive or judicial, whether represented by Crown, governor or council; or later by state and federal government.

The Americans blended natural law with the ancient rights of Englishmen. Holt suggests that:

One of the issues which led to the War of Independence was the Crown's refusal to abandon in America those prerogatives which had already been destroyed in England (in 1689).

Curiously, however, Nelson seems to claim just the opposite, that the Americans claimed the King could by his prerogative disregard the Acts of Parliament and relieve the Americans from the operation of such Acts. But the King no longer possessed such a prerogative, notwithstanding his retention of it in the 1690s when reexamining the colonial charters. And since the English Acts, such as the Bill of Rights, did not apply to the colonies, except in the Carolinas, neither King nor Parliament acknowledged America's claims to these transformed rights in the ancient constitution. Blackstone, in his Commentaries (7th ed., 1775), further pointed out that the common law did not apply in the colonies. Most of the colonies, in fact, developed their own law while giving a certain amount of lip service to the common law, yet when it came to taxation and regulation, claimed rights as beneficiaries of English law.

Since sovereignty lay with the Crown, restrained by Parliament, Members of Parliament were never therefore representatives of the districts from which they served. But in America this was different. Colonial charters permitted representative assemblies, and without a sovereign or enobled aristocracy, the colonists came to see sovereignty to lie in the people whom their elected officials would represent. By the Revolution, Americans were contending for what they perceived were the rights of Englishmen which had been granted to them by the mother country. Many of their early documents referenced Magna Carta, and after the promulgation of the doctrine of natural rights in the late 17th century, they saw themselves entitled to all the rights of a free people, without regard to the niceties of how they were viewed by the King and Parliament.

If sovereignty lies with the people, then the legislature is not supreme. Thus in America we have opted for judicial supremacy rather than Parliamentary supremacy as a means of adhering to that higher law. The common law lawyers of England had developed the idea that the common law was the embodiment of the ancient constitution and that, notwithstanding Parliament, the common law could shape an act of Parliament that might otherwise tend to run afoul of the common law. Sir Thomas Moore in 1535 rested his defense on an Edward III statute that proclaimed that "if any statute be made to the contrary of Magna Carta that shall be holden for none." Coke, in Bonham's case (1610) stated that a court can hold legislation invalid because it contravenes higher law. Our notions of judicial review have a long history, yet notwithstanding Bonham's case, not one of the new American state constitutions made any provision for judicial review as a means of assuring compliance with the fundamental law. This came later with Chief Justice Marshall in Marbury v. Madison, 1 Cranch 137 (1803).

As Magna Carta acquired an ever-wider application to more of the population than the freemen of 1215, it nevertheless was perceived as a limit on government action, but not curiously when Americans debated whether to adopt the Constitution of 1787, which did not contain a Bill of Rights. The supporters of the Constitution explained that since sovereignty lay with the people and the people had granted certain limited powers to the federal government, the people needed no specific limitations on their government because they had not granted their government plenary powers, but rather enumerated powers. As Hamilton stated in Federalist No. 84, "Here in strictness, the people surrender nothing; and as they retain everything they have no need of particular reservations." While they lost that argument, we do have the Ninth Amendment which provides:

The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.

This is the opposite of Magna Carta, which is a grant from the sovereign to the people, in so many words. Nevertheless, Magna Carta represents an articulation or a prelude to an enumeration of rights that both our countries share, notwithstanding the scholars' efforts one hundred years ago to demote Magna Carta to the dustbin of out-moded and forgotten feudal history.

Since I was dragged to the U. S. Supreme Court by my opponents, you might be amused to hear how Magna Carta made it into my Brief. D.C. Law invalidated a testamentary gift to a clergyman or religious organization if made in a Will executed within 30 days of death, a so-called mortmain statute. My firm represented the Catholic Archbishop, a legatee, and another firm represented the Baptists, because the testatrix was hedging her bets. The collateral heirs relied upon the mortmain statute. We contended the mortmain statute denied equal protection of the law under the Fifth Amendment inasmuch as charities were not precluded from taking bequests similarly timed. To combat the notion that testamentary freedom is not a natural right, but a mere statutory right, we cited Magna Carta chapter 26 which recognizes an ancient testamentary freedom that after debts to the King are paid and the wife and children's share satisfied, the testatrix is free to bequeath to anyone. Since the D.C. Court of Appeals had held the statute unconstitutional on equal protection grounds, the heirs sought a nondiscretionary appeal to the U.S. Supreme Court, which resulted in a 5 to 4 victory for us when the Court held that a statute applicable only to the District of Columbia is not a statute of the United States within the meaning of the appellate jurisdiction of the Supreme Court.

But I would like to share with you another basis for the lasting significance of Magna Carta. Ever since Marx and Engels spread a gloss on the interpretation of history as a class struggle with their convoluted dialectic materialism, the Communists and fascists have envisioned the future as better because it will be different, not simply new and improved, but transformationally different. Perhaps this approach started with the French Revolution where the old order was abolished in the name of a better order. Rights were created out of whole cloth and evaporated with every new wave of radicals. Contrast this with our Angle-American tradition where revolutions we have had, yes, but in what name? In the name of restoring the commonwealth to one more closely following the ancient, higher law. And even when new ideas are proposed:

It is no unusual device for innovators to render their reforms more palatable by presenting them disguised as returns to the past.

This must also be distinguished from the Mohammedan revolutionaries who wish to return to sharia law, which unlike the common law and natural law, has not evolved for the benefit of an ever-expanding class of beneficiaries. Think about it. Nearly all the revolutions from King John and his Barons (1215), Simon de Montfort and Henry III (1258-1264), Edward II and Edward III (1327), Richard II and Henry IV (1399), Henry Tudor and Richard III (1485), the restoration of Charles II (1660), and the Glorious Revolution of 1688 when William and Mary replaced James II, were conservative revolutions aimed at restoring the government to conduct itself more in keeping with the ancient, but evolving law. And so it was with the American Revolution. New ideas on the location of sovereignty and further extensions of freedom, yes, but whence cometh the idea? Britain had abused these rights of Americans who wanted to put things back the way they were supposed to be. In a new society, yes, but based on the ancient laws and customs to which they perceived they were entitled and upon the imperatives of natural law, but not to some new wild ideas from who knows where. It is accordingly with this thought that I submit to you we all must glorify in the preservation of Magna Carta in this 800th anniversary year. *