Happy Thanksgiving – now give me $1.50

Happy Thanksgiving – now give me $1.50

Happy Thanksgiving, Americans! Today you celebrate your country’s founding by spending time with family. But if you wanted something else to do, and you have a Kindle, why not buy this ebook on Magna Carta, 1215 and All That. It’s selling well in America, but then at $1.50 it’s a bargain. Here’s an extract on how Magna Carta influenced America:

 

The doors to America’s Supreme Court feature eight panels showing important moments in legal history, one with an angry-looking King John facing a baron, between them being the Magna Carta.

The dream of 1215 did not end at Evesham, and while Simon De Montfort had died his legacy lived on. That’s not to say he didn’t have his faults; he was arrogant, vain and may have turned out as bad as the king were he in charge. Even for the standards of the time, he was insanely anti-Semitic, and expelled all the Jews from Leicester, where he was earl (although compared to his nephew Edward I he was Oskar Schindler).

But this aristocratic, French religious bigot is still a hero of English liberties nonetheless, as the man who tried to establish restrictions on the power of the monarch. Today his picture hangs outside the United States House of Representatives in remembrance of his legacy. He also has the honour of having a university and concert hall in Leicester named after him, as well as a non-league football stadium and a bridge on the north-east stretch of the A46. Worth having your testicles chopped off for, surely.

In 1300 King Edward reconfirmed the Charter when there was further discontent among the aristocracy; the king may have been lying to everyone, but he at least established the precedent that kings were supposed to pretend to be bound by rules. Twice Magna Carta helped to remove rulers in the 14th century and Edward III was the first king effectively appointed by Parliament after his father had been overthrown in 1327. Parliament often reaffirmed the Magna Carta to the monarch, with 40 such announcements by 1400. Under Edward III the so-called ‘six statutes’ spelled out the idea of due process of law, and this became perhaps the most important plank of freedom in the English-speaking world. The wording of Charter 39 was expanded, with ‘free man’ changed to ‘no man, of whatever estate or condition he may be’; and stating that no one could be dispossessed, imprisoned, or executed without ‘due process of law’, the first time that phrase was used.

Magna Carta was last issued in 1423 and was barely referenced in the later 15th or 16th centuries, with the country going through periods of dynastic fighting followed by Tudor despotism. By Elizabeth I’s time, Magna Carta was so little cared about that William Shakespeare’s play King John didn’t even mention it. The play mainly attacks John for not standing up to the pope enough, which at this time of anti-Catholic paranoia was seen as a far bigger crime than a few murders.

The first print edition of Magna Carta appeared, in Latin, in 1508, followed by an English translation in 1534. As the number of books published and sold rocketed in the 16th century, along with literacy levels, there came a new interest in the law. This period saw the growth of two conflicting ideas: on the one hand absolutism, which had developed out of the practical reality of monarchies becoming centralised and monarchs more powerful. Its origins were in the medieval period but only took truly lunatic form in the reign of ‘Sun King’ Louis XIV of France from 1643, who built an enormous palace which he filled with enough rooms so that he could always face the sun, whatever time of day. His policies would cripple the economy, suppress free expression and undermine the growth of civil society, while across the Channel, Englishmen smugly watched.

In England, Elizabeth’s incomprehensible Scottish successor James I used to lecture parliament about his belief in the divine right of kings, yet there was also a rival idea developing – that the rights of ordinary Englishmen were natural and ancient and had only been usurped by monarchs. Magna Carta would be essential to this.

Opponents of James I and his son Charles I talked of England’s ‘ancient constitution’, and traced it from Magna Carta and further back to the Anglo-Saxon witans and forest councils of the Saxons in Germany. Some of this may have been a little on the romantic side, if not actual junk history, but it created precedents and rights that became self-fulfilling.

Certainly, the text to the Unknown Charter makes clear that the barons thought they were restoring law, rather than innovating, for in the words of one historian they ‘believed that good law had once existed and that their duty lay in recalling and restoring it. To this extent, Magna Carta is to be viewed as a deeply conservative, not as a deliberately radical, measure.’

The most influential of these constitutionalists was the jurist Edward Coke, who saw the Great Charter as reaffirmation of ancient English rights. Coke and parliamentarian John Hampden used Magna Carta as an argument for an Ancient Constitution that the Stuarts were trying to take away. They might have used some creative history along the way; Coke thought parliament as old as king Arthur and even dated it back to the City of Troy where the first Britons had come from.

Coke used Magna Carta as the basis of the Petition of Right, the proto-constitution that Parliament forced Charles I to sign. Charles refused to budge and would meet a similar end to his ancestor, John.

During the build-up to the civil war, parliamentarians cited Magna Carta in their (rather spiteful) impeachments against the Earl of Stafford in 1641 and Archbishop Laud four years later, two supporters of the king who were accused of conspiring to bring about arbitrary government and undermine parliament. Likewise, the 1641 Grand Remonstrance against the crown looked to it as proof of parliamentary rights.

However, the 17th century also saw controversy about what Magna Carta actually meant. Some historians, with justification, argued that it essentially only defended the barons and that it was irrelevant to an uprising by the House of Commons, which didn’t even exist until the reign of Edward I. And ‘ancient rights’ is something of a misnomer, for generally speaking early medieval Europe was not a place where anyone had rights. Much of this Parliamentary historical idea was also a sort of anti-French fantasy in which the Normans took away the ancient rights of freeborn Englishmen who used to sit around a forest discussing the minutiae of law-making or perhaps cricket.

After Parliament won the war in 1649 the victors fell out and a strongman, Puritan MP turned soldier, Oliver Cromwell, ended up dismissing parliament, too, and when informed by a lawyer about ancient rights, shouted ‘I care not for the Magna Farta!’ Cromwell died in 1658 and two years later Charles’s son Charles II would be crowned king, but after his death his brother James II was ejected and replaced by his son-in-law, the Dutchman William of Orange (in circumstances not entirely different to those of Prince Louis in 1216). Again Magna Carta was cited as precedent and justification, leading to the 1689 Bill of Rights, the cornerstone of the (unwritten) English constitution. The Bill of Rights confirmed English freedoms such as the right to have a reasonable bail when being tried, freedom from cruel and unusual punishments and freedom of speech, as well as preventing royal interference with the law and, money always being an issue down the years, no taxation without royal approval.

After this, Magna Carta would continue to have great appeal to political liberals. Arthur Beardmore, a friend of radical eighteenth-century politician John Wilkes and the editor of Monitor, was arrested for libelling the authoritarian Scottish politician Lord Bute in 1762, and when they came to arrest him he just happened to be teaching his son about Magna Carta; it was a contrived PR stunt, but Bute was unpopular and Beardmore was released.

It was partly thanks to Coke that Magna Carta was to have even more influence in the new world than it did in the old. Coke was a fervent believer in English liberties, as he set out in his book The Excellent Privilege of Liberty and Property Being the Birth-Right of the Free-born Subjects of England (which even sounds like one of those American polemics, with their long subtitles). In America, the Puritans and other wrangling, bickering Protestant sects would make Magna Carta central to their beliefs; the Quaker William Penn first published it in the colonies in 1687.

It was Coke who helped to draft the charter of the newly-established Virginia Company in 1606, which set the rules of government for the English colonies in the new world. On this continent, he wrote, there would be ‘all liberties, franchises and immunities … as if they had been abiding and born within this our realm of England’. Instructions issued in 1618 by the Virginia Company to Governor Sir George Yeardley were called the ‘Great Charter’ by Virginians, and the General Assembly of Virginia became the first such parliament in the western hemisphere.

Similar English liberties were guaranteed in the charters of the other colonies, among them Massachusetts, Connecticut and the Carolinas. When North Carolina was established, its proprietors authorised its governor to grant land on the same terms as the Grant Deed of Grant of Virginia, ‘a species of Magna Carta’. Puritan Massachusetts’s first emblem showed a man with a sword in one hand and a copy of Magna Carta in the other.

Again, most of those bringing about these fundamental changes saw themselves as preserving the past rather than being revolutionaries; the worst criticism a Puritan could make was to call something an ‘innovation’. They were simply reviving old rights, they said, although this could just be because it is logically easier to claim to want to preserve rather than change. In fact even Edward the Confessor, at his coronation in 1043, had sworn to uphold the law of his Viking predecessor Canute, who in turn swore to uphold the laws of King Edgar who ruled in the 10th century. He probably claimed to be upholding the laws of someone even more distant before him.

The importance of Magna Carta became even greater in the debates and quarrels that followed after Britain had kicked the French out of North America in 1763. This would lead to rebellion and independence, and the most famous slogan of the revolutionary era – ‘no taxation without representation’ – is similar in spirit to Clause 14, which states that ‘And for us to have common counsel of the realm for the levying of an aid’.

When the American Constitution came to be written it was heavily influenced by Magna Carta, and the famous Fifth Amendment borrows from Clause 39: ‘No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury… nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.’ Likewise, the Sixth Amendment, which states that ‘the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed’, was similar to Clause 40.

What do you think?

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