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Chapter Six

Magna Carta in America: Entrenched Joyce Lee Malcolm

By the great Charter no americament shall be assessed but by the oath of Honest and Lawfull men of the Vicinage. And by the Same Charter no Freeman shall be taken or imprisoned or be disseised of his Freehold or Liberties or Free Customs not passed upon nor condemned but by lawful judgment of his Peers or by the Law of the Land. ‘Instructions to their Representative’, Braintree, Massachusetts Town Meeting protesting the Stamp Act, 1765

Magna Carta decreed that no man would be imprisoned contrary to the law of the land. Art. 39 US Supreme Court, Boumediene v. Bush, 553 us 723 (2008)

O The Declaration of Independence (detail), by John Trumbull, 1817 56

n a winter’s day in 1761 Bostonians crowded into the Massachusetts Superior Court to hear James Otis challenge the legality of the writs of assistance on behalf of 63 Boston merchants. The writs were general search warrants authorizing government officials to break into private homes and warehouses at any time to search for contraband. Constables and even passers-by could be required to aid in the search. Oddly, these writs had been approved by Parliament in 1660 and used successfully in England despite legal treatises questioning their legality. Yet when they began to be used in the American colonies a century later they provoked outrage. The Boston suit started when James Paxton, a Massachusetts customs official, applied to the Massachusetts Superior Court for the writ. Ordinarily James Otis, the colony’s advocate general, would have been expected to support Paxton. Instead he resigned his post to represent the furious merchants.1 57


magna carta in america

Edward Coke, Lord Chief Justice (oil on panel), by Marcus Gheeraerts the Younger (c. 1561–1635)

descendants, as British subjects, were entitled to all those rights, by the British Constitution, as well as by the law of nature and our provincial charter, as much as any inhabitant of London or Bristol, or any part of England; and were not to be cheated out of them by any phantom of “virtual representation”, or any other fiction of law or politics, or any monkish trick of deceit and hypocrisy.’4 The justices ruled that they had the right to issue the writ and granted Paxton’s request. But Otis’s insistence that the writs were a violation of fundamental law affirmed by Magna Carta resonated throughout the colonies. This insistence on a right against unreasonable searches would be ultimately embedded in American state and federal constitutions. And the claim that an act against fundamental law is void has been the foundation of American judicial review.

Magna Carta and the rights of the colonists The quarrel over the extent to which the colonists enjoyed the liberties of Englishmen had begun much earlier. ‘Let an Englishman go where he will,’ Richard West, British Board of Trade counsel advised in 1720, ‘he carries as much of law and liberty with him as the state of things will bear.’ 5 Differences over just how much ‘law and liberty’ that was would bring Britain and thirteen of her North American colonies to blows. Certainly the liberties that made Englishmen ‘freeborn’ seemed straightforward to the colonists. All their charters, starting with the first in 1606 which James I granted to the planters of Virginia promised Otis and his co-counsel, Oxenbridge Thatcher, charged, among other complaints, that the writ was ‘against the fundamental principles of English Law’ and quoted Sir Edward Coke in Dr Bonham’s Case on that basic rule from Magna Carta: ‘An act against the constitution is void. An act against natural equity is void.’ 2 Even Parliament, Coke had insisted, could not pass legislation that was against fundamental law. 3 Otis traced that principle to Saxon laws and to Magna Carta, adding that parliaments had confirmed the Charter fifty times. Violators of Magna Carta had been executed. ‘[T]he security of these rights to life, liberty, and property’, Otis reminded the court, ‘had been the object of all those struggles against arbitrary power, temporal and spiritual, civil and political, military and ecclesiastical, in every age. He asserted that our ancestors, as British subjects, and we, their 58

that all and every the Persons, being our Subjects, which shall dwell and inhabit within every or any of the said several Colonies and Plantations, and every of their children, which shall happen to be born within any of the Limits and Precincts of the said several Colonies and Plantations 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. 6 English kings reckoned that the dangers of crossing the Atlantic and setting up residence in a wild land were so great that few of their

subjects would emigrate unless they were assured they would enjoy their old liberties in their new homes. The core of these liberties was laid out in Magna Carta which, despite fits and starts, had been woven into common law over the centuries. Just at the time America was being settled there was growing fear in England that King James and his successors were bent on curbing those precious rights. That anxiety led to civil war in Britain and drove families to the colonies. This jealousy over their rights sharpened the colonists’ political sensitivities. How they understood those ancient tenets of Magna Carta and entrenched them in their federal and state constitutions is the subject of this chapter. While Englishmen on both sides of the Atlantic set a high value on their rights, their manner of protecting them diverged, and that divergence has resulted in Magna Carta’s legacy remaining more vibrant in America than in the land of its origins. Although the colonists boasted of their liberties anchored in Magna Carta, there has been some doubt about their knowledge of its provisions. 7 Yet at least their leaders knew their Magna Carta. In 1646, sixteen years after the pilgrims set foot on the inhospitable coast of Massachusetts, the colony’s legislature issued a document comparing Magna Carta, article by article, to the ‘Fundamentalls of the Massachusetts’ and finding parallels throughout.8 And to make doubly sure customary English rights were put into practice Maryland (1639), Massachusetts Bay (1641) and West New Jersey (1676) passed statutes providing for the application of common law and referring to specific chapters of Magna Carta, especially the cluster of key property and judicial rights in chapters 39 and 40 of the 1215 charter, consolidated into chapter 29 of the 1225 revision: No free-man shall be taken, or imprisoned, or dispossessed, of his free tenement, or liberties, or free customs, or be outlawed, or exiled, or in any way destroyed; nor will we condemn him, nor will we commit him to prison, excepting by the legal judgment of his peers, or by the laws of the land. To none will we sell, to none will we deny, to none will we delay right or justice. William Penn, founder of Pennsylvania, had the entire text of Magna Carta published in 1687, its first printing in the western hemisphere, to enlighten any residents of Pennsylvania ‘That are strangers, in a great measure, to the true understanding of that

William Penn (1644–1718) receiving the Charter of Pennsylvania from King Charles II of England, by Allan Stewart (1865–1961)

inestimable Inheritance that every Free-born Subject of England is Heir unto by Birth-right, I mean that unparallel’d Priviledge of Liberty and Property.’ 9 Penn reckoned this ‘happy Frame of Government . . . shines most conspicuously in two things: 1. parliaments 2. juries.’ 10 Whoever impairs or undermines these, he wrote, strikes at the constitution of the government and should be severely punished: ‘To cut down the Banks and let in the Sea, or to poison all the springs and Rivers in the Kingdom, could not be a greater Mischief; for this would only affect the present Age, but the other will Ruin and enslave all our Posterity.’ 11 Magna Carta also laid the foundation for American property law, for the notion that the government was bounded by the rule of law, and for the recognition that any act that contradicted a right it declared was no law at all. In 1701 Penn granted a Charter of Privileges to Pennsylvanians that echoed King John’s promise in Magna Carta: ‘neither I, my Heirs or Assigns, shall procure or do any Thing or Things whereby the Liberties In this Charter contained and expressed, nor any part thereof, shall be infringed or broken: And if any thing shall be procured or done, by any Person or Persons, contrary to these Presents, it shall be held of no Force or Effect.’ 12 English colonists often needed to be even more litigious than their peers in the Mother Country because the English government wasn’t 59


Magna Carta: The Foundation of Freedom 1215-2015