tv America and the Magna Carta CSPAN August 20, 2015 7:19am-8:55am EDT
with discussions on harper lee, civil rights and the civil war. on saturday, september 5th, we're live from our nation's capital for the 15th annual national book festival, followed on sunday with our live in depth program with former second lady and senior fellow at the american enterprise institute, lynne cheney. "book tv" on c-span2, television for serious readers. coming up next, several law professors explore the origins of the magna carta and the influence of the british document on the creation of the american bill of rights. the professor spoke at the library of congress where a 12:15 copy of the magna carta is temporarily on display. king john originally signed the document under pressure from his barons at runny meade, england. american revolutionaries looks to the rightshts guaranteed by magna carta as they rebelled against the english crown. this is 90 minutes.
>> good morning. i propose to cover three things in my brief opening remarks this morning. why me? why now? why are you here? magna carta's relevance today. from an early age growing up in america, it was good king john the lion heart, bad king john lachlan and robin hood and his merry men, not to forget maid mir yen, littlejohn, fryer tuck, henry the viii, shakespeare, costume and architecture and in music. i grew up with the belief that the sun never sets on the british empire. i collected stamps from all over the british empire. all americans knew george
washington, john jay, sam adams, all the founding fathers were english men. alexander hamilton was a scott born in the caribbean. as they came, so did settlers from germany, austria, hungary, polands, swiss, russians, chinese and all the countries came to the melting pot of america over the past 400 years since the founding of jamestown in 1607. my parents took me to the new york world's fair in 1940 just seven years old to see many of the country's exhibitions and among them, for the first time i saw magna carta at the british exhibition. the 1215 lincoln cathedral magna carta. on my first visit to britain as a serving officer in dwrupt states army, in 1957 i was returning to america to be discharged after serving in korea, my tour of duty
completed, my first day in london, i went to the british museum to see two things, the magna carta and the row set that stone. to me they represented the icons of civilization, of a civilized society, the rule of law and communication outside the village. i became a trustee of the magna carta trust 21 years ago when i became chairman of the pilgrim society. the chairman of the trust by charter is the master of the roles, head of the civil law in the uk. i've worked with six and i now serve as the deputy chairman of the trust. as the longest serving member of the trust i was asked in 2010 to chair the magna carta 800s anniversary commemoration committee. so today for me is either or perhaps both the end of the beginning or the beginning of the end, but how could i refuse
and that's why i'm here and why now, so why are you hear? well the speaker's panel are here because each of them is an expert in their fields. the audience, because we believe in the rule of law, we believe in democracy, in human rights, in freedom of religion, due process, trial by jury and peace, not war, and rather in the way of kings, emperors and warlords use of force and cultural diplomacy we believe in in soft power. there are many myths which surround magna carta. it was only a fight between the barons and the king and didn't really affect the people. it was a failed peace treaty. some are demystified in the excellent book published by the law library of congress an thompson reuters. i hope you will all share in reading it and some of you, dick
howard i see in the room, helped in writetion it. it's an excellent chapter, dick. today we'll hear from them about these myths and learn about these truths. our session this morning carries the title, historical perspectives on magna carta. you will hear that from them, not me. 38 years ago, tmet with the senior members of the american congress and senate assemble in the westminster hall to hand over the lincoln 1215 magna carta to the library of congress in the autumn of 2014 to be displayed in the rotunda of the congress of the united states and i was there then. that's why i'm here now. there's one thing not on the program today that i would like everyone to consider here as we are on capitol hill at one end
of pennsylvania avenue with the white house at the other, and here am i at this podium representing my two countries, britain and america who believe and act in the defense of liberty. i would argue that threats to our shared values strengthen the special relationship which binds our two countries, britain and america. president obama does as well, as has every president in my lifetime going back to franklin d. roosevelt. obama observed in 2001 in a speech to the british parliament our system of justice, customs and values stemmed from our british forefathers, and the president went on to say our relationship is special because of the values and believes that have united our people throughout the ages. centuries ago, when kings
emperors and warlords reigned over much of the world, it was the english who first spelled out the rights and liberties of man in magna carta. i thank you. [ applause ] >> it's a great privilege to be part of this 800th anniversary celebration and to enjoy this wonderful hospitality of the library and especially the law library. thank you so much, david, colleagues and your hospitality. over the past three decades, scholars have taught us a great deal about the history of rights talk and the western tradition prior to the enlightenment. we now know a great deal more about classical roman understandings of rights, liberties and powers and the realization by later civil and common lawyers.
we now pour over an intricate latticework of individual group rights and liberties developed by medieval catholic cannonists and the expansion of this handiwork by early modern spain. we now know a good deal more about republican theories of liberty and their transformative influence on early modern common lawyers and political revolutionaries on both sides of the atlantic. we now know in brief that the west knew ample liberty before liberalism and had many fundamental rights in place before there were modern dem kretic revolutions in their name. the magna carta was a critical early source of common law rights and liberties. charters of rights and liberties were actually quite common in the middle ages, both before and after 1215, both in england and on the continent. but no medieval charter proved more critical for common law developments than the magna carta.
this famous document forged at running mead made ample provision for early forms of fair taxation, various criminal procedure protections, rights of marriage, private property and inheritance, freedom of trade, travel and commerce, freedom of the church and more. particularly press yent for later jurists were prototypical provisions on due process and rule of law. no free man, we read, shall be taken, imprisoned, desized, outlawed, banished or in any way destroyed, nor will we proceed against or prosecute him except by the lawful judgment of his peers and by the law of the land. again, to no one will we sell, to no one will we deny or delay right or justice. in the 14th century and early 15th, these came to be understood as due process rights. to be sure, the magna carta was no comprehensive modern statement of rights and liberties. particularly the fundamental
rights of religion, speech, press, assembly, privacy, equality and more, so central to the common law today even the most progressive of medieval legal texts. many other commonplace rights today set forth in dwrun versal declaration of human rights and its proj any is hardly figured at all in the magna carta or other medieval charters. a number of historians are now at work mapping and measuring how they got from there to here, how this medieval seabed of rights an liberties eventually grew into the thick forest of human rights norms in place today. the morning i'd like to sketch in one small piece of this emerging map, namely the growth of rights in 17th century england and in colonial america in the 17th century. this was a time in england not unlike the early 13th century
when chronic royal abuses prompted various english groups to rise up to rebel against the king and demand greater rights and liberties. the 17th century was also a time when a massive wave of revolutionary writings pressed not only for the restoration of the old magna carta, but the creation of a new all right with many more rights and greater protections than its medieval ancest ancestor. while no new such magna carta was passed for england, the old magna carta was given vibrant new life in the turbulent 17th century and many of the provacative rights, ideas, advocated in these writings gradually made their way into the anglo american common law, first and foremost in 17th century colonial america which featured a number of striking in 1640, the english world was
turned upside down. for the first time in 11 years, king charles i called parliament into session and the members erupted in unprecedented furry against decades of royal abuses by charles and his father, james. aristocracy and merchants had faded under strangulating trade regulations and tariffs. much of the country had come to rescind the increasingly belligerent enforcement of oppresses of royal measures by the prerogative court. when finally called into session in 1640, parliamentary leaders seized power by force of arms. civil war erupted between the supporters of parliament and the
monarchy. the parliamentary party prevailed and passed an act declaring and instituting the people of england to be a commonwealth and free states. the commonwealth parliament abolished the kingship and it opposed king charles with tried, convicted for treason and executed by beheading in 1649. equal and proportional representation was guaranteed in the election of local representatives. the church of england was formally disestablished. this radical commonwealth experiment lasted only until 166 on 0 and most of its laws were reversed in that time. but in that brief 20-year period with censorship laws temporarily relaxed, england saw an avenue larch of new writings that would
prove pressient for the inventorial expansion of rights, especially in the hands of the colonists. more than 22,000 pamphlets, sermans and other tracts were published from 1640 to 1660. a number of them drafted before 1640 and many more drafted in the course of this 20-year period. many of them denouncing the tyranny of church and state and calling for morrow bust protection of the people's rights and liberties. many pamphleteers pointed to the magna carta with its guarantee that the church of england shall be free and have all of her rights and liberties inviable and all should enjoy country rights and liberties. some pamphleteers advocated funding all a these, not just to the church of england and to all glb english subjects.
puritan leader, john lilbur fl was an ardent champion of this view. he called magna carta the birth right of every englishman. while i was no freeman, he wrote, i have fewer rights that do belong to a freeman as the greatest man in england. similarly, sir edward cook, the greatest english juryist of his day called the magna carta not just a dusty and dispensable agreement hoisted on to king john, it was, said cook, quote, the principal ground of the fundamental laws of england which neither king more church nor parliament could breach. magna carta, cook declared famously, is such a fellow that he will have no sovereign superior to him. beyond the magna carta, the pamphleteers pointed furg to the petition of rights of 1628 which
cook had also helped to shape. parliament had pressed this document on a very reluctant king charles in exchange for their consent to new taxes. the petition included a number of rights that would prove critical to the angelo american common law tradition. no further taxation without the common consent of parliament. no forced loans from the people, no chasing of a man's life or liberty or lapped. no imprisonment or disenharntance without due process of law. no suspension of the writ of habeas corpus. no forced quartering of soldiers or private homes, no prosecution for nonstatutorily enact aed kriels. no use of marshall law against english subjects save in the most dire of emergencies. all of these rights and liberties, the 1628 petition declared, were to be maintained and enforced according to the laws and statutes of this realm
without prejudice to the people or their parliament. given that royal abuses continued to pace after the petition of right of 1628, various pamphleteers in the 1640s and '50s called for further and stronger rights documents. magna carta wrote puritan leader william walwin as its repeated royal abuses become a very plotted book. we need a new magna carta, he declared, that provides sturdier safeguards against the tyranny of crown, church and commonwealth alike. walwin joined forces to draft such a new magna carta which they entitled, quote, an agreement of the free people of england, which is published in 1649. the agreement was really a new written constitution for england. it focused first and foremost on
the functions of government call for a representative of government calling for legislative and judicial powers. the agreement also took great teams to enumerate the people's rights. it took on all the rights of the magna carta and the petition of rights and added serve other rights petitions, as well, that would become fundamental to the gre greater. the agreement had strong new religious freedom guarantees. freedom of conscious and exercised, freedom from compulsory ties and oswearing. freedom of worship and association. freedom to elect and reject clergy by congregationes and parishes. the agreement called for robust freedoms of speaking, writing, printing and publishing adducing john milton's brilliant defense of the freedom of speech just
set out in 1644. in addition to freedom of religion and speech, the agreement elaborated several additional criminal procedural guarantees. a guarantee of the privilege against self-incrimination. the rights to call and confront witnesses and one's own criminal defense. the right to jury trial in all criminal cases, felonious and petty alike. no capital punishment save on due conviction or grave felonies. proportionate punishment in noncapital cases that were equal to the prescribed and proscribed offense. and no imprisonment for private deaths. elsewhere, the authors of the agreement called for the, quote, just, speedy, plain and unburdensome resolution of cases. and no pretrial detention or imprisonment without a warpt. here in this proposed new magna carta of 1649 was set out
virtually every criminal procedural right that would appear a century and a half later in the u.s. bill of rights and in parallel american state constitutional provisions. and finally, the agreement protected rights of commerce, business and private property. it included guarantees of tax and excise free trade as well as freedom from government sponsored business monopolies. it forbade any government actions designed to level men's estates or destroy their property or to make all things common. the mid 17th century english pamphleteers pressed these and other rights claims, not merely as positive rights created by the state, but as a fundamental or natural rights created by god and deserving of constitutional confirmation, protection and implementation. as richard overton, one of the
coauthors of the 1649 agreement put it and i woet quarterback pore by natural birth, all men are equally born to property, liberty and freedom and are delivered by god by the hand of nature into this world, everyone with a natural, innate freedom and property never to be obliterated. everyone equally and alike to enjoy his birth right and privilege. overton, lilburn, milton sxm other english writers of the mid 17th century defended these natural or fundamental rights on various grounds. some of them adduced the common christian ideas of the day that each person is a prophet, a priest and a king with natural rights and natural duties to speak, to preach and to rule the community. others adduced the ten commandments of the hee bro bible with its first table rights and duty toes honor, worship, examine properly use god's name and its second table rights and duties concerning
marriage, family and household, life, property and reputation. still, others turned to roman law and medieval precedent to defend all manner of public, private, penal and procedural rights. the radical rights idea set out in this proposed new magna carta and in many other pamphlets of the mid 17th century proved far too radical and a add a venturesome of the english common law of the day. with the restoration of the church, crowd and commonwealth of the 1660, this document and many like it were confined to the flames. and many of their authors and defenders were pilloried, punished, banished and a few of them killed. nonetheless, this short burst, indeed, short explosion of expansive rights in the mid 17th century set ee normative totum for generations of common lawyers to make ever more real.
it was only two generations later that some of these ideas informed the english bill of rights and toleration act of 1689. and even more of them entered slowly into the common law case law and statutes over the next three centuries. the new rights that took centuries to develop in england took over a few years to develop in colonial america. the english royal charter that first constituted many of the 17th century american colonies gave the settlers a broad latitude to conceive and create their own ideal policies. the 17th century charters imposed no real royalist establishment on the new world and rather few restrictions on the young colonies. the colonists were free to dwom develop their own structures if
not all of their own magistrates and to pass their own laws provided they were knot repugnant to the laws of glnt or trespass the laws of free and natural subjects. the first colonial companies used this freedom to create something of a haven or european and english dissenters and a laboratory to try out some of the most adventuresome rights ideas that had just been discussed in england and on the continent. many of the colonists introduced their own experiments, especially in residentialus liberty upon arrival, incorporating some of the radical ideas we just heard. providence plantation, for example, was established in 1636 in the words of its founder, roger williams, as a lively experiment for full liberty and religious and civil concernments. the providence and later rhode island colonies remarkably progressive policies of
protecting liberty of conscious, the free exercise and enjoyment of all civil and religious rights and a guarantee against the establishment of christianity, in particular, became a model for various religious liberty advocates of the 1e8 century. maryland, too, was founded by catholic leader lord baltimore in 1633 as an experiment in remarkable catholic and protestant cocystance. no person professing to believe in jesus christ shall hence forth be any ways troubled for he or she religion nor in the free exercise thereof nor in any way compelled to exercise any religion beyond his or her consent. rather controversial was the
quaker william penn in 1682 which had comparable guarantees. colonial america was an active laboratory for experiments not only in religious liberty, but also in a number of other basic rights and liberties. more than a century before the american revolution set to work crafting all of these instruments that are so famous today, the colonists had already written many of their own bills of rights which they set out in some detail and charters and other instruments. there are many examples from the 17th century as my copanelists will no doubt elaborate in a few moments. let me focus on an early one. the body of liberty that emerged in massachusetts bay in 1641 and
came to be styled as a new american magna carta. puritan massachusetts was hardly known this day as a haven for liberty. we know it was a bastion of pure democracy, of the hanging of quakers in the boston commons, of the prosecution and punishment of witches and neighboring salem. this purported puritan bureaucracy passed in 1641, their new magna carta. just over a decade after the arrival of the first colonists in modern day boston. the body of liberties incorporated not only the rights, guarantees of the magna carta and the petition of right in england, but also many of the most daring rights proposals gathered from the pamphleteers in england as well as the pamphleteres in the 1550s and protestant circle on the
continent. and it made its own surprising innovations, as well. the body of liberties was drafted by nathaniel ward, minister and cambridge-trained lawyer who had come to english in 1634 with ten years of legal experience as a barrister in england. he had in his trunk john calvin's institutes of the christian religion and a whole huge pile of all of these cool pamphlets i've just been talking about, the body of liberties that ward drafted fills 25 9x12 inch pages and provides a detail detailed recitation, the preble am able to the 1641 body of liberties makes clear that the massachusetts colonists regarded
the protection of rights and liberties to be essential to the peace and stability of church, state and society alike. it opened with strong guarantees to the rights of liberty, property, family and recitation that elaborated the magna carta's due process laws. here is what we read. no man's wife should be taken away. no man's honor shall be sustained, no man's body shall be arrested, restrained nor in any way punished. no man's good or estates shall be taken away from him, no in any way damaged under color of law of count nance of authority nns unless it is bit virtue of equity of some express law of the country established by a general court sfushtly published, well known and discernible. the body of liberties fleshed
out these basic guarantees with a number of criminal procedures rights and protections. and we hear some of the familiar things that we just heard and all persons are guaranteed the right to endure the same justice and equal and partial -- of the law. parties could be charged only for crimes explicitly set out in statutes. grand juries were to be used for preliminary findings and indictments in serious cases. defendants had a read to hearing before an impartial judge. a right to a speedy trial. they are guaranteed the self-incrimination. they could not be subject to double jeopardy. conviction for crime required proof by clear and convincing evidence. a defendant could not be
tortured to collect evidence against themselves nor could it be subject to, quote, inhumane or barberous punishment. in civil suits, parties could elect a written or oral pleading. they could elect bench or jury trials. in jury trials, jurors were selected from the electorate and they could be challenged by both plaintiffs and defendants. they could give verdict upon clear and safe presentation of evidence. parties could appear pro se. they could super damage equity relief. they could counterclaim. parties could intervene as needed. parties could be compelled to testify at the judge's discretion. and in the event of damage awards, parties could claim a right to homestead exemption. the body of liberties included strong guarantees of private property rights and private contracts.
the rights to whole alienate government interference. they had fishing and harvesting and hunting rights on public land. everyone expected any -- taken from them. and there were special provisions given to women, children and servants rejecting the traditional common law rule to rule without interference. we read every married woman shall be free from bodily correction or strikes by her husband. and she has special procedural protections to bring complaints. widows could seek redress if their estates were not large enough. children were freed from unnatural severity from their fathers. corporal discipline of servants -- to be canceled in the event of undue.
no man shall exercise any tyranny of any cruelty towards creature which is usually kept for man's use and in such event that beast should be set free or given to a more benovelent neighbor. the right to appear and speak at town and congregational meetings, the right to move and petition or redress from grievance. and the he freedom to search records, a freedom of information as it comes to be called. three more minutes, if i may, mr. chief librarian. the 1641 body of liberties was a remarkably detailed list, an expansionive discussion of public/private penal and procedural rights to liberty. it was all the more remarkable
in that it was drawn up for a young, scattered community of some 15,000 souls for whom mere survival for a second decade of severe winters, pestolence, and native american invasions were still their most pressing concern. the body of liberties was duplicated in whole or in part in a number of our new england colonies. it became something of an anchor for john adams and other drafters of the 1980 written constitution, the oldest constitution in the world and certainly in the west and john adams singleled out this 1641 body of liberties as a pressing document in his understanding of the defense of the constitutions of the united states, a massive free volume work defending american constitutionalism. nathaniel ward, the author of
the 1641 body of liberties pretended this is an assemblage of laws as he understood them. he was deppry indicating the novelty and sweep of him formulations. what was new in colonial england was to have all these different, scattered traditional common law rights of england and many new rights besides even the peace. compelled in a single source, generally available to all subjects of the community, regardless of the court in which they appeared.and generally binding on all parties. citizen and official alike. nothing like that existed in the english common law of the day with its byzantine complex of court and procedures. what was also new in colonial england compared to old england was to have this body of liberties serve as something of a written constitutional text
that gave instruction the government authorities on the limits of the law and that gave permanent standing to colonial citizens to vindicate rights abuses before the courts. here was a matrix for the creation of understandings of judicial review. and we have in the colonial case law thereafter some evidence of that judicial review in action. although, inevitably, like every law and action, it was a blatantly breached body of laws, especially in the hands of some early leaders with oligarcich intentions. and most novel of all was the ability of massachusetts and other new england colonists to bill this bed of rights on a framework rooted in hebrew understandingses between nature and god and predicated on
covenant politics in their day, setting out in their theorists of law of covenant and rights many of the basic ideas of a contract carriant logic that in general terms rather than b the thee logical terms of the 17th century would come to dominate 1e8 century american life. i thank you for your kind attention. good morning. thank you very much for inviting know be here. it's a great pleasure. we've just heard about many of the original rights that were add aed in the new world. my essay here is entitled magna carta in transed, legacy in america. and while i will be speaking about the transition and attitude of these rights to
america, it struck me, and i think most people would agree, that magna carta is far more important here in america than it is in the land where it was signed. i was particularly struck by this in 2005 where i wrote a brief essay for an online journal, a british online journal for the social affairs unit called farewell to magna carta. there was a great -- over the enhanced police rights, long detentions, and one of the leading journalists who wrote for the guardian and the bbc, simon jenkins was so upset, he wrote, where can liberty turn? and he looked to the house of lords for help the now, the
house of lords had been successively gutted of its powers some time ago. and the he was particularly concerned about this detention and he cited a cause for magna carta about how people were entitled to the loss of judgment of their peers. what i found ironic was that as you can see by these dates, less than a month earlier, the same simon jenkins had written annest about juriries. the evidence is clear. those things could be done by parliament. particleli parliament, unlike our congress, can erase rights and change the constitution with a simple majority vote.
in 1999, they abolished the hereditary house of the lords to which simon was appealing. there's an appointed house of lords and there were some hereditary lords who were grant fathered in. but the house of lords is not what it had been. for those of us who are very concerned about the rule of law, in 2003, the same parliament abolished the the 1800-year-old prohibition against double jeopardy. it was supposed to be for murder, but they were so taken by the possibility that this allowed for having other cases brought back that they added some 20 other crimes, including not only murder, but rape, man slaughter, kidnapping, drug trafficking and other crimes. which meant if you had been found innocent, you could always be brought back and tried again if there was new evidence. and the new evidence was to be
decided by the prosecutor and it was a lower standard than in civil cases. they also reduced the number of jury trials and the hearsay evidence okay. as an american, i was much more upset about this, i think, than probably most of the people living in britain were. there's a great contrast, of course, with our own practice where magna carta and its right to have been entrenched in state and federal constitutions, the magna carta has been embedded in the statute books of 27 states. here they are by date. and it has also been incorporated in the constitutions, not full magna carta, but the due process chapter, which says that no person shall be deprived of life, liberty or property without due process of law. and four more states have the same provision in the context of
civil -- of criminal prosecutions. five more with a provision limited to the accused and criminal prosecutions. all of these are in the the state constitutions as a guarantee. what i'd like to do now is to just give you a a brief history of it, colonial history of a transition to america of these rights. and then the evolution in england of the power of parliament and the american take on that because i'm particularly curious about how we've parted ways, how we got so far removed from that british tradition, from the colonists, as you have just heard, came to this country with a lot of the very strong, passionate feelings from 17th century writers and the english civil war about the rights of individuals. one of the chief writers who is
very influential was sir edward cook. and cook's writings on magna carta were particularly read and studied by many of our founders, like jefferson and adams and john marshall. he said magna carta was the fountain of all the fundamental laws of the realm, which make free men. he also, in this institute, talked about how judgment given against many points of the charter of magna carta are judge boyd and if any statute he made against either of these chartsers, it shall be void. so there's your tradition of joou judicial review. later on in the institute, he did, as i put in capital letters, say, putt but parliament cannot be confined for causes or persons but the founders particularly focused on his accord of magna carta and of the statutes that were made
against him being void and kind of ignored and implicit threat that parliament could do whatever it wanted. and in dr. bonham's case in 1610, cook wrote, it appears in our statute books and in many cases the common law will control acts of parliament and sometimes to judge them to be utterly void for when an act of parliament is against common right or reason or im pug nant or impossible to be performed, the common law will control it and judge such an act to be void. the charter writes that the founders receive -- excuse me. this is my first powerpoint, so you'll have to bear with me. t this guaranteed to those people who were going to be settling that they and their children
would have all -- enjoy all the liberties, franchises and immunities as if they had been abiding and born within our realm of england. and they must, i think quite early, have been rather displayed at how feisty the people were who came here because they were very much concerned about maintaining those rights. and massachusetts bay, they issued a document comparing magna carta article by article to the fundamentals of the massachusetts in 1646. and in maryland, massachusetts and new england have statutes providing for common law and mentioning various chapters of magna carta, particularly the one based on what were article aes 39 and 40 of the 1215 edition of magna carta about no
free man can be taken -- or to be outloud or exiled or in any way destroyed, nor will we condemn him to prison except by legal judgment of his peers or by the law of the land. to none will we sell, to none will we delay right or justice. william penn, in fact, in 1687, had published the entire text of magna carta. its first printing in the western hemisphere. to residents of pennsylvania, as a he he put it, that are strangers and a great measure to the true understanding of that inheritance, that every free born subject of england is air unto birth rights. i mean that unparalleled privilege of liberty and property. and he praises happy frame of government which he said shines most conspicuously in two things, parliaments and juries. the jury part i'm sure you will
be hearing more about soon. as i said, the people were came here were extremely litigious. and one of my favorite examples of this is, again, massachusetts. in 1664, the massachusetts assembly realized how young this colony was. they wrote a letter to their, quote, with sovereign taking issues with the royal commission that accused the new england colonies of passing laws repugnant to the laws of england. they claim their own colony had, quote, an a exemption to the payment of customs imposed by the navigation account a act a, enquote. others were reminded their charter two years earlier granted, quote, undo them their heirs and assigns and associates forever that the use of property and the tract of land and full and absolute power of governing all the people of this place.
by men chosen by themselves and according to such laws as they shall, from time to time, see meet and make and establish be not repugnant to the laws of england. then rereminded him -- and i find this aan amazing clause -- that according to their charter, that only the fifth part of gold and silver that shall be found herein. and i don't know that anyone has ever found an ounce of gold and silg silver in massachusetts, but that was what they were supposed to pay and no more. quote, we are likely to be subject toed to the arbitrary power of strangers, proceeding not by established law, but by their own discussions. if these things go on, they warned, your subjects here will she forced to -- under burdens that will be to them intolerable. the crown officials yielded and
the massachusetts parliament refused to answer even to the charges. under the dominion of new england in 1687 when james ii tried to cobble the new england colonies together, under a governing council, there was a pro te protest in ibswich because of the tax that was being imposed on them without consulting their assembly. and some of the ibsich members, including one of the ministers -- the ministers tend to be feisty themselves often. some of the most feisty. the judge told him not to sink the laws of england follow them to the ends of the earth for wither they went, but the only
privilege they had was, quote, not to be sold as a slave. the massachusetts assembly shifted their case to their own supreme judicial court and, quote, empower that court to exercise powers comparable to those in the courts of west minister and that is to grant these people habeas corpus. of course, james left in 1688 and the -- this dominion of new england was no more. we're all familiar with the various protests against regulations from britain, the writs of assistance for general search warrants. it's interesting the writs of assistance which inspired james odus to resign his career as a british official and represent some 60 odd merchants in their protests had, in fact, been in operation in britain for some time. while there had been some legal treatises written against it, there hadn't been any upset the
same way there was in massachusetts and in the new world. the tea tax that was going to be so provocative in this country was observed and paid in britain. we are all familiar, of course, with the stamp act. in braintree, massachusetts, when they protested it, they were concerned not only about it being passed in a parliament in which they had no representation, but saw the loss of jury trials, local jury trials for admiralty trials which a judge appointed at will and not just a local jury. there are a couple of cases i'd like to mention. one is i've got to hancock case, as many of you probably know, john hancock, founder, president of the continental congress was also a famous tumbler.
he was arrested and jailed for failing to obtain a permit to unload a cargo of his ship, the liberty. john adams rose to the occasion and defended him. but i think it gives you an example of what hancock and other smugglers were up against was his ship was seized in june and it was condemned in august, falls in september along with its cargo. but that wasn't good enough for the british government. in october, hancock was sued for the enormous sum of 9,000 pounds. adams represented him and argued that repealing magna carta as far as the rights of americans were concerned. and you'll be happy to know that it would have reduced hahn
conbelow the rank of an englishman. the government decided to drop the case and our founder went free, as it were. but the americans felt very strongly that their rights needed to be beyond the seizure of the british government. massachusetts would have its charter revoked if the only rights you had were those in your charters, then you were always very vulnerable. so the idea that -- were to be inalienable, that they were part of you as a human being and natural rights was terribly important. so the source of the magna carta rights had to be natural rights confirmed. this was reiterated time and again by people here and, of
course, when thomas jefferson pens the declaration of independence, he mentioned that these rights that are in -- that people are entitled to were endowed by their creator with certain inalienable rights. so these are not rights that anybody can take away from you. they are not your charter rights. they're not given you by the king, who is the one who, in fact, had signed all these charters. the state constitutions that were drafted -- oops. i'm sorry. there's one other episode that i wanted to mention before i get to that. and that is the 1772 burning of the gas tag, this will give you another sense of how important it was that people have local juries and, in fact, the local juries for americans were very
unwilling to arrest or condemn people like hancock. but the burning of the gas stake is less known, but gives you a sense of how united the country was. the british had these men of wars and ships patrolling office in the new england coast which is a perfect coast for smuggling since it's so irregular. a local loop lured the -- into shallow waters off the coast of rhode island where it duly got grounded. at that point, people described as patriots are rode out to the gas bay and took the captain and crew prisoner. in fact, they brought them back to i think it was pawtuckette which still xhem rates the joy of having these people in their
prison. the british had thoughtfully passed something called a stockyard act which meant if you burned any of the king's ships, it was -- you were charged with treason. and the gas act grounded right before it went up in flames. no one knew how. since it was such a waste of time to get a local jury to find out what happened and condemn anybody for this treason, the government formed a special commission of all the chief justices of the new england colonies along with new jersey and new york. and these people were to inquire into what had happened and find out who should be convicted of this or at least charged with it and brought to trial in britain on the charge of treason. in fact, no one gave them any evidence whatsoever. and so finally, i think it was the the chief justice of rhode
island said that, well, since we can't get any evidence and we don't know what happened, we're just going to have to drop the case. and they did. so the british government were really up against a failurely united or at least intimidated group of people, intimidated by their feistier neighbors not to come forward. why was magna carta entrenched here and not in the uk? that's a chief concern of mine. i think timing is everything. i did -- here we go. at the time that the colonies were going through these final throes before the revolution, they were still relying on cook for their rights. but blackstone was the writing at that time, his first volume of the commentaries on the laws
of england was published in 1765. a whole volume on the rights of individuals. blackstone thought very highly of magna carta. but it preserved rights, it didn't create them. the rights of individuals were bested in them by the immunble laws of nature which jefferson and americans could certainly agree with and restraint of the will of the subject quarterback whether practiced by a monarch or assembly is a degree of tyranny. expert, european expert that founders relied on. but there was a big butt in the blackstone commentary. that is by the time of the american revolution, parliament had become more and more sovereign. blackstone where he that particle want cannot do anything that is not naturally impossible. they used to say parliament can
do anything except make a man a woman. which is interesting because now they could do that. at any rate, there is a lot of concern. even blackstone by his final and ninth addition became a little worried about the fact that all those rights could be overriding by parliament. and so he put in a little kind of waiver of that clause. he said if parliament will positively enact the thing to be done, which is unreasonable, i know of no power in the ordinary constitution that vested in control. so he left a little bit of wiggle room. this is oushl not going to be anything that the americans could rely on. so they liked blackstone, but not that part of it. some of the new state constitutions that were drafted in 1776 after the declaration of
independence, particularly exempted from the power of their legislatures the right to alter any of the rights given in the constitution. so here is delaware. but after saying that the legislature will preserve the right -- excuse me, the common law and lenlgislate, they put something in there and new jersey has something similar that in their new constitution, no one can pass the right trial by jury shall remain confirmed as a part of the law of this colony without repeal forever. georgia had a preamble which claims claimed for citizens the rights are -- by the law of
reason and that included several articles with a pledge in the english bill of rights preventing excessive fines, the rights to habeas corpus and to remain invlate forever. the u.s. constitution has embedded rights within the body of the constitution, the right to habeas corpus and then, of course, we have the bill of rights amended to the constitution. in contrast to particlelity, it is very difficult to actually a amend the united states constitution. so no simple majority vote of the houses of parliament -- excuse me, of the congress with the president can alter any of our rights. and i think that's made a great difference. the british trust and parliament and their view and it is i think a rationale choice, they feel
that they must defer to the democratic branches. we have embedded these rights to magna carta in our constitution and made it very difficult for anybody, or even our legislature by itself or the states to make any change in that. in closing, i'd just like to cite the author of the federal farmer writing during the debate over the american constitution in 1688 where he explains how our freedom depends on keeping in view this legacy of magna carta. the rights. the people might not forget these rights and gradually become prepared for arbitrary government. their discerning and honest leaders caused this instrument to be confirmed near 40 times and to be read twice a year in public places. not that it would lose its validity without sich confirmations, but to fix the
contents of it in the minds of the people as they successfully come upon this stage. men in some countries do not remain free merely because they are entitled to natural and inalienable rights. men in all countries are entitled to them, not because their ancestors once got together and enumerated them on paper, but because by repeated negotiations and declarations, all parties are brought to realize them and, of course, to believe them to be sacred. i might show the wisdom as our past conduct of the people and not comforting ourselves that we were entitled to freedom, but in constantly keeping in view addresses and bills of rights and newspapers, and etcetera, the particular principals on which our freedom must always depend. thank you.
>> my topic today is magna carta and trial by jury in the new republic. i'm a legal historian and i study the legal systems of england, the american colonies and the united states. that is rules about civil and criminal procedure, lawyers, juries and judges. it's a great pleasure to be here with other historians and scholars at the library of congress. and in return for this pleasure, i promise not to get into the technical details of pleading trespass on the case or demuring to the evidence in the 18th century. i became interested in this topic because of bafflement. i was studying the scope of jury trial in the new republic and i
didn't understand language in the case i was reading. the case was zilstra versus city of charleston and the south carolina supreme court delivered the opinion in 1794. the half with zilstra a not only had an interesting nail, but had been keeping a candle shop in the city of charleston. this violated a city ordinance because of the south carolina supreme court hopefully explained, charleston has a hot climate. and beef tallow, that is beef fat, smells a lot. my husband can attest to this because i make beef bone broth every week and every week he complains about the smell. those of you who have adopted a paleo diet i think understand this predicament. for violating the ordinance in charleston, zilstra was charged in a municipal court and fined
$100. zilstra then complained to the scattered showers of south carolina that he had a right to jury trial. his counsel argued vigorously that zilstra was entitled to the trial by jury, the birth right of every citizen, secured to him by magna carta and our excellent constitution. wait a minute, i thought. what's magna carta got to do with this aurlt? is this just the usual overblown rhetoric of lawyers? well, not entirely, it turned out. the south carolina constitution of 1790, like those of most other states in the new republic, contained the following language. no free man of this state shall in any manner be deprived of his life, liberty or property but by the judgment of his peers or by the law of the land. we've heard already from both of
the previous two speakers the language of article 29 of magna carta. i'm here following the 1225 reissuance, but it's worth hearing again. might as well hear it a third time. no free man shall be taken and imprisoned or diseased of any free tenments or of his liberties or free customs or outlawed or destroyed nor shall we go upon him except by the judgment of his peers or by the law of the land. in other words, the majority of states stuck the language of article 29 of magna carta translated and with only minor paraphrasing directly into their constitutions. it thus became, beyond question, the law of the land. but a further surprise awaited me in the zilstra case. that was the language that was used in describing the right to jury trial.
the trial by jury is a common law right. not the creature of the constitution, but originating in time and memorial. it is the inheritance of every citizen, the title to which commenced long before the political existence of this society and which has been held and used by our ancestors in succession from that period, who knows when that was, to our own time. well, needless to say, zilstra got a jury trial. but what is going on here, i wondered? will judge waites lost his mind? he had a constitution in front of him in black and white that was only four years old. why was he talking about time and memorial, the inheritance of every citizen, held and used in violate by our an a sefters. what could he mean? after our first few speakers,
now you have a sense of what he meant. but i got the sense when i read that that he was referring to a developed strand of thought. i thought i'd better find out about that strand if i wanted to understand ideas about the jury in the new republic. and thus began my odyssey into magna carta or my odyssey into the new land. ideas about magna carta and jury trial changed quite a bit in 800 years. a logical place to begin is at the beginning. the barons could not possibly have intended to guarantee common law trial by jury. jury trials did not exist and
only for certain types of cases. it meant no one could be tried by his inferiors. the barons, therefore, thought that they should be tried by each other, a concept that survived in the trial of peers in the house of lords. the barons did not consider royal judges to be their peers, much less the common folks that made up ordinary juries. in the 14th century, new understandings of article 29 arose that encouraged a future link to common law trial by jury. the 14th century was a time of great conflict between the crown and the nobility. parliament enacted a series on of statutes that referred to magna carta and confirmed a trial following lawful procedures should take place before jult.
judgment. several of these 14th century statutes used a phrase we've heard about from both of our previous two speakers, due process of law. which thus became deeply associated with magna carta. the words due process of law comes from those 14th century statutes. beginning in the attitudeo period and especially in the 17th century, english writers explicitly linked to the phrase judgment of his peers in magna carta to common law jury trial. they described this right as an ancient inheritance. the first person to make this appears to have been william lambard in 1581. lambard was an antiporium, a collector of angelocksackson la.
lambard's aranarca was familiar to americans. during the constitutional struggles of the 17th century, edward cook, a name we've heard about from both of our previous two speakers was happy to embellish the theme of magna carta and jury trial. this link aided cook's quest in his later career, at least, to strengthen the common law courts and to limit chancery and the other prerogative courts. the prerogative courts sat without juries and were more subject to -- control. a source well known to americans, as we've heard. co cook's view, this inheritance was unchanging and from time and
memorial it preceded the norman conquest and endured to cook's day. according to the fundamental laes expected in magna carta and other sources, the king could not take property from his subjects or imprison them without due process of law. the law of the land specified what process was due and its most important component was the common law of england. so we can now start to see the origin of judge waities ideas in south carolina in the 1790s. a difficulty was that the english in england and the english in america held different views about the extent to which the fundamental laws, including the common law, applied outside of england. cook himself did not believe that the full pan plea of these rights existed outside of england. blackstone certainly did not. he wrote in his commentaries
that parliament had control because these lands were kopgerred. colonial charters, furthermore, purported to give, as we've heard, english settlers in the colonies and their decendents the full rights of englishmen, as if they had been abiding and born within this realm of england. the american insistence on their rights as englishmen is something that is important for us to understand. it's often overlooked in contemporary education. but unlike many things that are overlooked in contemporary education, it's been overlooked for some kind because of the desire to assimilate immigrants of our countries and the forming
of an independent american identity. the theory we proclaim today is that the united states is a nation founded on universal principals, not on blood. many american colonists and revolutionaries had a different view. they thought of their rights as an ancient inheritance based on their blood. they conflated, in some cases, their rights as englishmen with the universal rights of men. at every opportunity, and proclaiming their liberties, they harped on their ancestors and their descendants. you see these words over and over again in statements of american liberty. fathers, children, posterity and so on. for the most part, they did not mean spiritual ancestors or descenda descendants. they meant flesh and blood. the transformation from blood decent to spiritual dissent came later. abraham lincoln expressed that most eloquently in a speech he
made to commemorate independence day in chicago 1858 drawing on the words of did declaration of independence. back in the 18th century, like edward cook, many american colonists believed that their inheritance was unchanging and from ancient times, from time and memorial. no king or parliament could rightfully alter this birth right of the english people. the body of this inheritance was, as cook had explained, the fundamental laws of england, especially as expressed in magna carta. and as we've heard, already this morning to an astonishing extent, the american colonists printed, distributed, invoked passages from magna carta. thomas jefferson's view bes the english constitution were widespread among educated colonists and helped explain american devotion to magna carta. jefferson follows declaration of the universal rights of man in
the declaration of independence the em bided early and promoted energetically the idea that the english constitution and common law were legacies of the anglo-saxon. . central to this was a primitive democracy. exposedly embodied in such free institutions as the trial by jury. jefferson was so enamored he proposed an official steel for the united states showing the figures of hangus and horsa, who are those characters, you might wonder. there they are. these were two german chiefs and among the first anglo-saxon of
invaders in the fifth certain century. han gu s means stallion and horsa means quartz. you see in the bottom right there of the picture of a horse banner, good, common, free germans carrying the horse banner there. and interestingly, to show you the link with the mythical past, you see horse head gables like this on farmhouses throughout northern germany, the netherlands and scandinavia. in other words, the places where the anglo-saxons were from. so we are deep into ancestral
mythology here. jefferson described hangus and horsa as the saxon chiefs whose principals and form of government we have assumed. in the wig story championed by jefferson, the depraved normans were the evil doers. the french speaking normans imposed feudalism and temporarily formed the rights of englishmen. magna carta, fortunately, restored these rights. the constitutional battles of the 17th century were further examples of the english asserting their rights. americans saw themselves in a continuation of this struggle to preserve the ancient rights of english men against usurpers. as tensions blts between the north atlantic colonies and britain, american invocations of
magna carta became more aggressive. this is a $4 bill printed in maryland in 1775. my children were very interested in the idea of a $4 bill. they wanted one. i'm not sure it would be legal tender today. we'll take a closer look at it. i hope. there we go. this wood cut shows the figure of liberty on the right there. as she's holding a pole with a cap on it, typical symbolism and she is standing on the word slavery underneath her there. and she's backed by american troops carrying the the the banner of liberty. you might be able to see the l.i.b. on there. the figure of liberty is handing
a petition to britania a in the middle with the shield and spear. britania, though, unfortunately, is restrained by king george iii, the large figure on the left. who is shown transforming magna carta. so in the face that he's standing on, it says m. carta, standing for magna carta. and king george is setting fire to the port of an appennapolis. many americans claimed, therefore, that they had inheritance and they were not giving it up without a fight. for americans, the jury was not only part of their ancient inheritance as english men protected by magna carta, or so they thought, but the jury had proved very useful during the colonial period in the conflict with the british government. and we've heard about this from
professor malcom already. at the heart of the american fervor about the jury, was the institution's ability to nullify un.popular laws. on the criminal side, american juries either refused to indict or acquitted so often in case of sadicious lible, that there were -- civil juries were prized for their ability to nullify the customs laws by awarding plaintiffs damages in trespass cases against customs tax collectors. and i'm surprised john hancock didn't think of that. maybe he tried and it didn't work out for some reason. this practice exasperated
british officials. a custom house officer has no chance for the jury, let his cause be what it will. another colonial governor of massachusetts wrote that a trial by jury here is only trying one ahisate trader by his fellows or at least by his well wishers. clonists viewed the jurisdiction as a major grievance. they repeatedly complained about the curtailment of the right to jury trial and in particular, in the sample a act a congress of 1765 and the declaration of independence a decade later. the british government, in the view of many americans was depriving them of their birth right to trial by jury and magna carta and thus preventing them
from nullifying the hated customs law. and this view accounts for the immediate insertion of law 29 into these state constitutions. it took place as a early as that, as soon as the state constitutions were written. the majority of them put that language right into them. here was the difficulty. here is the difficulty. once those governments took power, jury nullification became problematic. the people had a say in the power of law. why should 12 citizens have the power to nullify laws elected by the entire people. furthermore, legislature has followed a practice for enacting law itself ratified by the people. at the time the federal constitution was drafted in
1787, the federalists began to express publicly doubts about the civil jury. anti-federalists such as patrick henry of virginia argued strenuously in favor of it. the specific issue that henry called attention to was the civil jury's ability to nullify debts. debtors were a powerful political force soon after the revolution. state legislatures passed laws that made it easier for debtors to escape creditor's demands. in addition, state juries were sympathetic to debtors. these critters were often british merchant webs not a particularly popular group in america at the time. anti-federalists protested the lack of a civil jury right in the federal constitution. they were afraid that debtors would be hauled into federal court and made to pay their debts. the anti-federalists succeeded in persuading a le ruktant james
madison to draft a bill of rights, including a right to civil jury trial in the seventh amendment. in drafting what became the seventh amendment, madison studiously avoided glorifying the civil jury. he had argued against the need for a civil jury right in the ratifying convention, directly opposing patrick henry. madison, therefore, decided to make no direct reference to magna card ya in the seventh amendment. the federalist concerns about the jury prestaged the attitudes of many later legislators and judges in the united states. politicians and judges continued and continue to praise the jury in extravagant terms and to exalt magna carta as the guarantee of this liberty. year by year, however, they whittled the jury away. this erosion was especially true of the civil jury. at the founding, the jury had been a political institution as was famously described. in the 19th century, however,
many americans in all areas wanted predictable, uniform legal rules that would help to promote commercial development. use of civil juries could lead to unlawful, unpredictability results that undermined the legislature in court and thwarted the ability to plan and carry out actions. besides, the expense and inconvenience of jury trial was great. and one of the most surprising things about reading state constitutional conventions in the early 19th century was how often delegates complained about the jurors having to spend their time listening to their neighbor's complaints. the dollars z z jury began to be regarded as a judicial institution. we see the shift in the attitudes toward the jury in the opinions of state and federal court. as we saw previously, the south
carolina supreme court in 1794 in the zilstra case louded magna carta and regarded a jury trial. as the republic matured, however, courts dropped the language of ancestors and rights from time and memorial and focused on efficiency of adjudicati adjudication. the 1890 opinion of the u.s. supreme court in bank of columbia versus oakley . . the debtor complained that he was -- his right to a trial under the maryland constitution. the maryland constitution was one of those that directly incorporated the language of magna carta article 29. justice william johnson wrote the opinion, as it happened he was a native of charleston. he took a different attitude toward the magna carta than had
his fellow south carolinan thomas waites. in his opinion for the court, justice johnson wasted no time for the usual fulsome praise for the language of the great charter. his tone, indeed, suggested impatience with what he called the volumes spoken and written with a view to their exposition. instead of trying to carefully interpret the words in light of respected scholarly authorities as judge waites had done, justice johnson preempt orally declared that man kind arrived at the idea that they were attempt to go secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principals of private rights and distributive justice. after this announcement, justice johnson explained that the debtor had chosen to make his note negotiable at the bank and, therefore, he had waved the right to jury trial. by the mid 19th century in both
england and america, the powers of the civil jury were increasingly curtailed. the jury went from being described as a sacred palladium, as blackstone called it, to a figure of fun. the english humor magazine punch got in on the act. they seldom miss the opportunity. and they published a book called the comic blackstone by gilbert abecket in 1846. the most quoted pass aemg, and one singled out for admiration in the united states was a satire on blackstone's chapter on the civil jury. beckett referred to the ancient inheritance of englishmen. the trial by jury is, of course, a subject that every true born britain with a quarter of a pint of sackson blood in his veins is prepared to rebel in.xon blood prepared to rebel in. the story of the jury moving
from an ancient and prized right of the people to a nuisance suggests the difficulties of constitutionalizing specific procedures rights. legal systems, economies and policies can change, changing the need for a particular procedure. the idea of the jury as a right of englishman from time in memorial was a fiction, a myth. the criminal jury was unknown in 1215 and the barons insisted that the common law jury did not apply to them in the most important civil cases. in his struggles against royal prerogative in the 17th century and it suited americans in their struggles against british control in the 18th century. after these battles were over, the civil jury seemed to many to be a liability. the legal system needed new
procedures that were more efficient for commercial societies. the more enduring legacy of magna carta is the one that justice william johnson pointed to in bank of columbia versus oakl oakley. the idea that the individual should be secure from the article tear exercise of the powers of government. thank you. coming up thursday night on american history tvr, the history of the american west. first, california during the 19th century and the role of wealthy businessman pio pico. the governor of the california region while it was under mexican rule. then we get a sense of how european colonial powers and native american tribes interacted on the great plains during the 1700s. and a discussion on how rocky mountain national park was farmed. all that thursday night on
american history tv on c-span3. follow the c-span cities tour as we travel outside the washington beltway to communities across america. >> the idea behind the cities tour is to take the programming for htv, american history tv, out on the road beyond the beltway to produce pieces that are more visual, that provide, again, a window into these cities that viewers would normally go to that also have, really, rich histories and a rich literary scene, as well. >> a lot of people have kind of heard the history of the big cities, like new york and l. aflt, chicago, but what about the smaller ones like albany, new york? what's the history of them? >> we've been to over 75 cities. we might be -- we will have hit 95 cities in april of 2016. >> most of our programming on c-span is event coverage. these are not event coverage type of pieces.
they're shorter. they take you to some place. they take you to a hole, a historic site. >> we partner with our cable affiliate toes explore the culture of various cities. >> the key entry into the city is the cable operator who contacts, in essence, the city. >> they're looking for great characters, you really want your viewers to be able to a identify with these people that we're talking about. >> it's an experiential type of program where we're taking people on the roads to places where they can touch things, see things. it's not just the local history because a lot of the local history plays into the national story. >> somebody is watching this. it should be enticing enough that they can get the idea of the story. but also, this is just in our backyard. let's go see it. >> we want viewers to get a sense that, oh, yeah, i know that place just from watching one of our pieces. >> the c-span mission, as we do
with all of our coverage, bleeds into what we do out on the road. >> you have to be able to communicate the message about this network in order to do this job. so it's done the one thing that we wanted it to do, which is build relationships with the city and our cable partners and gather some great programming for american history tv and book tv. watch the cities tour on the c-span networks to see where we're going next see our schedule at c-span.org/citiestour. coming up next, the supreme court historical society hosts the deputy president of the united kingdom supreme court, brin da hale, for a nem commerative lecture. justice hale explains how the magna carta influenc
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