If we choose to remember it, the document can still connect us to our own past and our English heritage
June 14, 2015 12:00 AM
Magna Carta Regis Johannis, printed in gold leaf and published in London by John Whittaker during the Regency era in 1816. In English, the text begins: "John, by the grace of God, king of England, lord of Ireland, duke of Normandy and Aquitaine, and count of Anjou, to the archbishop, bishops, abbots, earls, barons, justiciaries, foresters, sheriffs, stewards, servants, and to all his bailiffs and liege subjects, greetings. ..."
Clare Kendall/British Library
Magna Carta unification: The four original Magna Carta manuscripts being prepared for display at the British Library. More photos can be found here.
National Portrait Gallery, London
The first known portrait of King John by an unknown artist, 1620. It is on display at "Magna Carta: Law, Liberty, Legacy" at the British Library in London.
Alastair Grant/Associated Press
The seal of King John is seen on one of the four original surviving Magna Carta manuscripts that have been brought together by the British Library for the first time.
By Bernard Hibbitts
On June 15, 1215, Magna Carta — the “great charter” — was signed by King John of England. At the time, it was a practical document, a peace accord with rebel barons. But their treaty, which evolved over the centuries, contained the seeds of human liberty and the rule of law.
The story below is the second in a four-part series on Magna Carta at 800, exploring what the document brought about.
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Twenty miles outside London, in Runnymede meadow on the banks of the River Thames, stands a most peculiar monument. An open rotunda resembling an ancient Greco-Roman temple shelters a star-spangled pillar that reads “To Commemorate Magna Carta, Symbol of Freedom Under Law.” The monument is no weathered pile raised long ago by a dutiful English government or its historically minded citizens (such as one might see in Westminster Abbey), but rather a very modern memorial deliberately planted in a foreign field by the American Bar Association in 1957.
Of course Magna Carta (the “Great Charter”) was an English document. In essence it was a peace treaty, sealed by King John 800 years ago tomorrow — June 15, 1215 — at the insistence of a coalition of rebellious barons objecting to royal highhandedness, abuse and overtaxation for unsuccessful foreign wars. In sonorous Latin phrases weighted with pious appeals to the Almighty, it purported to guarantee the liberties of free Englishmen. Why then should it have become so important to Americans, and especially to American lawyers?
Part of the answer to this question turns on Magna Carta’s fate in England itself. As a peace treaty it was an ignominious failure. In the wake of renewed fighting and military reversals for the barons, it was annulled by the pope at the behest of King John after only two months. After John’s premature death in 1216, watered-down versions were periodically reissued by his immediate successors for their own political advantage as they sought to re-establish and re-legitimize royal authority.
In the 1400s and 1500s, however, Magna Carta took a back seat in English politics and culture as the English crown regained public confidence. Powerful Tudor monarchs like Henry VIII and Elizabeth I were uninterested in it. Shakespeare did not even mention it in his play “King John.” It was only “rediscovered” in the early 1600s by jurist and legal scholar Edward Coke, casting about for a way to restrain another overreaching king, in this case Charles I.
In 1606, Coke helped write the first charter of the new Virginia colony, and he included in his text an evocative reference to the colonists having all the liberties of Englishmen. Later Colonial charters used similar language. The fact that Magna Carta was “in the air” again in the first century of American colonization gave it an elevated moral and political status in the New World. It was no coincidence that when the Pilgrim fathers famously sailed to Plymouth Rock in 1620, they took a copy of Magna Carta with them.
Back in England, Charles I and Parliament meanwhile fought a Civil War, Charles lost his head, and the living legacy of Magna Carta was reflected in new English constitutional instruments like the statutory Bill of Rights of 1688 that constrained the post-Restoration monarchy. Once more Magna Carta itself receded into the political mist, if not unremembered, then by and large unmemorialized. Today, as a technical matter, only three of its clauses survive unrevoked or unrevised by Parliament.
But in America things were different. In the 1760s, when Parliament and the Crown under George III pressed the American colonies for taxes and committed other so-called “Intolerable Acts,” resentful Americans —including ambitious lawyers like James Otis and John Adams — reached for Magna Carta in support of their opposition to arbitrary power. The charter was freely invoked in political rhetoric and highlighted in patriot propaganda. Paul Revere depicted it in the seal he designed for revolutionary Massachusetts. After Yorktown, it became a potent symbol of successful resistance to tyranny and not incidentally, to the successful leadership of lawyers. As such it influenced the debate over the Constitution and the content of the Bill of Rights.
‘An eclectic document’
For all its fervor and sincerity, however, the American memory (especially American lawyers’ memory) of Magna Carta is selective. Americans point proudly to clauses 39 and 40 of the charter as fountainheads of trial by jury and the due process rights that so many hold dear.
Yet Magna Carta was an intentionally eclectic document. Partly under the influence of Roman law and canon law norms familiar to the learned bishops who drafted it, it blissfully cut across multiple facets of English medieval life in a pointed effort to improve them. It was no libertarian manifesto simply shielding the individual from the state; neither was it a purely constitutional instrument subordinating the king to a higher law. It sought at once to achieve peace, order and good government for the realm. It guarded the material interests of fatherless sons and of widows (clauses 2-6 and 7-8). It afforded protection to debtors (clauses 9-12). It restored public access to common resources (clause 33 on the elimination of fish weirs in the Thames and clause 47 on the disestablishment of royal forests, what might glibly be called the “Robin Hood” clause). It regulated weights and measures (clause 35 on wine, ale, corn and cloth). It encouraged trade (clause 41 on the unimpeded movement of merchants).
And, in some very un-American language appearing at both the beginning and end of the document (clauses 1 and 63), it confirmed the liberties of the church, the greatest and most beneficent social institution of its time.
At the end of the day then, Magna Carta was more socially aware and even proactive than Americans and American lawyers have generally made it out to be. Given its political origins in a segment of the English nobility, it was hardly a sweeping “people’s charter,” but it was much more than a narrow lawyer’s list of certified legal procedures, however fundamental.
Like the English, perhaps, Americans and American lawyers also seem to have been better at remembering Magna Carta at some times than at others. For all its usefulness to the Revolutionary generation, it conveniently faded away in the post-constitutional Federalist era, not surfacing in a U.S. Supreme Court judgment until 1819. Despite the efforts of a few abolitionists, it was oddly quiescent in the decades immediately before the Civil War while the nation grappled with critical issues of slavery and freedom. It did not figure in the post-Reconstruction ascendancy of Jim Crow laws. Only in the early 20th century did it come to the cultural fore again, not initially in the rhetorical defense of individual liberty or civil rights but for the more mundane political purpose of associating the United States with England as the two dominant partners in a triumphant international Anglo-Saxonism.
This continued through the 1920s, when the charter became part of the American Bar Association’s ideological tool kit for “Americanizing” the great tide of immigrants who had lately entered the country from Southern and Eastern Europe and whose smarter sons and daughters were by then lapping at the feet of the bar itself. Anglophilic American lawyers from the native-born upper middle class, enamored with the protection of their property rights and nostalgically pining for the hoary old certainty of English law, deployed Magna Carta to schools and community groups as a kind of cultural antibody while overtly celebrating it in elaborate pageants staged for national lawyers’ meetings.
With England and Western democracy under siege in World War II, Magna Carta had obvious political appeal for all Americans, but it is noteworthy that the 1957 Runnymede monument itself is literally a Cold War construct, a stone carefully placed by the American bar (and the 9,000 individual American lawyers who helped pay for it) in the ideological Berlin Wall that separated West and East during that grim period.
A guide to the future
Now, 800 years after King John’s original pact with the barons, Americans have a new opportunity to examine Magna Carta.
Great efforts — largely orchestrated by American lawyers — have been expended to make that re-examination possible. A less elitist and more culturally diverse American Bar Association has launched a new traveling exhibition on the charter that is making stops at law schools, courthouses and other law-related locations across the country; the ABA has also organized a new commemorative event scheduled to take place at Runnymede.
Last year, an “original” copy of the 1215 instrument long held by Lincoln Cathedral was secured for the United States on physical loan and was displayed for two months at the Library of Congress in Washington, D.C.; it has since been returned to the British Library in London, where it waits for American tourists visiting England this summer. As an artifact, the faded parchment is definitely worth seeing. But in a larger sense the current anniversary gives all of us, on or off the beaten track, an opportunity to reflect anew on what Magna Carta is, and what it can mean for Americans in time to come.
This is a changed and ever-changing land. Basic legal guarantees like trial by jury and due process are certainly still vitally important to all Americans who, in Martin Luther King Jr.’s words, would “live out the true meaning” of our national creed (can anyone doubt that in the face of Guantanamo?)
But Magna Carta has more to offer than the legal nostrums so enthusiastically celebrated by lawyers. If we look harder, it can also remind us of our substantive obligations to the weak, the vulnerable, the itinerant and the dispossessed, whose English forebears were briefly sheltered beneath its mantle. Its posture as a prototypical social contract between ruler and ruled can inspire us to build a better, stronger and more just nation for each other.
If we choose to remember it, the document can still connect us to our own past and our English heritage. But given its grounding in Roman and canon law as much as in a common law that barely existed when the charter was new, it can also connect us to an older, broader and in some respects more publicly ambitious international legal tradition.
Like the Constitution itself, Magna Carta has been remade by every generation of Americans in its own image. It is a mirror, not a monument. Today, it is our turn to decide what it stands for, and who we are.
Bernard Hibbitts is a professor of law at the University of Pittsburgh School of Law.
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