University of Edinburgh
In the 1760s the political disputes between Britain and her American colonies developed into a revolutionary crisis, which eventually led to war and the creation of an independent United States of America. In this crisis, which was primarily political and constitutional, the colonists challenged the authority of the British government and the power of the Westminster parliament by appealing to the notion of fundamental law, the principles of the English common law, the liberties granted to them in their colonial charters, and their understanding of England’s ancient constitution. In doing so, they frequently appealed to the rights and liberties granted by Magna Carta according to the interpretation of this charter of liberties that had been advanced over the centuries and more recently by Edward Coke and his allies who had strenuously defended the liberties of the subject and the rule of law against Stuart absolutism in the early seventeenth century. In the early thirteenth century Magna Carta had been supported by a baronial elite anxious to preserve its feudal privileges. It had not protected the rights and liberties of all the king’s subjects and it had not effectively limited the powers of the crown.1 Over the next four centuries, however, frequent confirmations of it by kings and parliaments,2 reinterpretations of it by teachers in the Inns of Court and by judges and lawyers appealing to it in numerous trials,3 and political exploitations of it by opponents of the crown’s prerogatives had seen its meaning and significance greatly expanded.4 By the later seventeenth century there was widespread support for Magna Carta, in both England and in her American colonies, but appeals were now made to the Magna Carta which had been interpreted and expanded over the centuries and mediated in particular by Edward Coke and his allies in the early seventeenth century, not to the Magna Carta of 1215 or even to that of 1225.5 It was now widely assumed that Magna Carta had guaranteed that justice would not be sold, delayed or denied to any subject, and that all accused persons must know the charge levelled against them, must be speedily brought to face their accusers and to be free to offer their defence in an open trial conducted according to the law of the land and before a jury of their equals in the vicinity of where the offence had taken place. It was further widely believed that Magna Carta was a fundamental law designed to preserve England’s ancient constitution and immemorial common law by bringing all powers, even the royal prerogative, under the rule of law and denying parliament the right to pass statutes contrary to fundamental laws of this kind.
Magna Carta in the American Revolution
Throughout the American crisis of the later eighteenth century the colonists repeatedly insisted that their charters from the king had always granted them the same rights and liberties as their fellow subjects back home in England, including those granted by Magna Carta. They pointed to the Virginia charter of 1606, which had promised that the emigrants who settled in this colony, and their descendants, ‘shall have and enjoy all Liberties, Franchises, and Immunities as if they had been abiding and born, within this our realm of England’.6 Similar rights were granted to many other colonies in America, from Massachusetts in 1629 to Georgia in 1732.7 The colonists themselves were generally very willing to adopt the English common law and English legal practices. When dissatisfied with the government of their colony, they frequently attempted to redress their grievances by appealing to the rights of Englishmen, including those they believed were enshrined in Magna Carta. The Maryland legislative assembly passed a law in 1638, which granted that the ‘Inhabitants of this province shall have all their rights and liberties according to the great charter of England’ and appeals were made to Magna Carta in a number of law suits contested in the Maryland courts.8 In Massachusetts a ‘Body of Liberties’ was drawn up in 1641 stressing the right of all the colony’s inhabitants to trial by jury, due legal process, and equal justice, all liberties drawn directly from chapter 29 of the 1225 version of Magna Carta. In 1646 the General Court of Massachusetts claimed that the laws of the colony were in accord with Magna Carta. Two years later, the ’Laws and Liberties of Massachusetts’ laid down several legal provisions, which were again drawn directly from chapter 29 of Magna Carta.9 William Penn, the first proprietor of the colony of Pennsylvania, successfully appealed to Magna Carta, when he demanded to know what specific law he had broken, when he was charged in London with disturbing the peace. He did not abandon his principles when he settled in America. In 1681, he drafted a charter for Pennsylvania and Delaware that guaranteed the inhabitants of these colonies a fair trial and freedom from unjust imprisonment. In 1687 he arranged for the first printing in America of the 1225 version of Magna Carta and also the 1297 confirmation of it, in his tract, The Excellent Priviledge of Liberty and Property: Being the Birth-Right of the Free-Born Subjects of England.10 Throughout the later eighteenth century, in their constitutional disputes with Britain, the American colonies continually reiterated that they possessed the same rights and liberties as the British people because of the grants made to them in their royal charters. In 1765, for example, Governor Stephen Hopkins of Rhode Island declared, ‘By all these charters, it is in the most express and solemn manner granted that these adventurers [the English colonists in America], and their children after them forever, should have and enjoy all the freedom and liberty that the subjects in England enjoy’.11 In 1766, Richard Bland appealed to Magna Carta as an earlier form of contract between the monarch and his subjects. He claimed that the rights and liberties enshrined in Magna Carta had been possessed by the English people since Anglo-Saxon times, long before 1215, and had been passed on to the American colonists as a fundamental law through their royal charters.12 Thomas Jefferson also made the same point.13 John Tucker maintained that the compact, created by royal charters, and reinforced by Magna Carta, limited the powers which George III could exercise over the American colonies. He claimed in 1771 that the American colonists lived under the British constitution, whose ‘constitutional laws are comprised in Magna-Charta [sic],14 or the great charter of the nation. This contains, in general, the liberties and privileges of the people, and is, virtually, a compact between the king and them; the reigning Prince, explicitly engaging, by solemn oath, to govern according to the laws:- Beyond the extent of these then or contrary to them, he can have no rightful authority at all.’15
Such colonial opinions were strongly contested in Britain, however. In seeking to impose its authority on the colonies the British government, supported by a clear majority in the Westminster parliament, insisted that the supreme sovereign authority in Britain and also in all British North America lay with the combined legislature of the King, the House of Lords and the House of Commons. This view of the British constitution had been steadily developing since the Glorious Revolution of 1688-89. Whereas the American colonists appealed to an early seventeenth-century view of the English constitution, which raised the law above both the British executive and legislature, many British politicians, since the Glorious Revolution, had become convinced that the combined legislature at Westminster possessed the right to pass, amend or revoke any law and could even alter or repeal the rights and liberties granted by Magna Carta.16William Blackstone, the celebrated and highly influential jurist, had claimed in 1765 that each state needed ‘a supreme, irresistible, absolute, uncontrolled authority’, and, in Britain, he asserted, this was the combined legislature of King, Lords and Commons.17 Even Edmund Burke, a politician very anxious to conciliate the American colonies, could never surrender his conviction that the British legislature was the supreme authority in America as it was in Britain.18 By the 1760s, the British defenders of parliamentary sovereignty had abandoned the long-standing belief that parliament’s sphere of action was limited by the superior authority of the fundamental law.19 Josiah Tucker, a leading British critic of the colonists’ claims, maintained that their arguments were self-defeating. He acknowledged that Magna Carta was the great foundation of English liberties and the basis of the constitution. It denied the king the right to raise taxes by his own prerogative and it supported the constitutional right of parliament alone to give consent to tax-raising measures. Magna Carta therefore supported the superior authority of parliament over that of the subordinate colonial legislative assemblies and hence it could not be appealed to in order to challenge the constitutional powers of parliament: ‘the principal End and Intention of Magna Charta, as far as Taxation is concerned, was to assert the Authority and Jurisdiction of the three Estates of the kingdom [King, Lords and Commons], in Opposition to the sole Prerogative of the King; so that if you [the colonists] will now plead the Spirit of Magna Charta, against the Jurisdiction of Parliament, you will plead Magna Charta against itself ’.20
British defenders of parliamentary sovereignty also pointed out that not all the American colonies had been granted a royal charter of liberties. The royal charters that had been granted had not conferred on the colonists all the rights and liberties of Englishmen (the right to vote in parliamentary elections, for example).21 Moreover, in the past, colonial charters had on several occasions been reviewed, altered and even revoked and, since they had been granted by the crown alone, they would always be subordinate to the sovereign authority of the British legislature.22 William Blackstone conceded that, ‘if an uninhabited country is discovered, and planted by English subjects, all the British laws then in being, which are the birthright of every subject, are immediately there in force. For as the law is the birthright of every subject, so wherever they go, they carry their laws with them.’23 Unfortunately for the colonial cause, however, he promptly went on to assert that, in territories which had been conquered or ceded by treaty, as was the case with all of Britain’s American colonies, the common law of England had no authority there and the colonists inhabiting these territories were subject to the sovereign authority of the British legislature.24 The American colonies might be allowed to possess their own legislatures, which could pass local laws, but these subordinate legislatures could not pass laws contrary to those passed by the Westminster parliament. On the other hand, the imperial Westminster parliament could pass laws for, and raise taxes in, the American colonies.25 Ironically, in view of how much the colonists relied in the 1760s on many of the arguments advanced against arbitrary and oppressive power by Edward Coke in the early seventeenth century, Coke had himself maintained that those English subjects who left the realm of England to live in the American colonies could not claim the same rights and liberties, under the common law or according to Magna Carta, as those who remained in England.26 This was one argument of Coke’s that the American colonists ignored.
In defending what they regarded as their constitutional rights and liberties, and in resisting the British efforts in the 1760s and 1770s to impose imperial authority over them, the American colonists often appealed to Magna Carta as proof of their claims. On a number of occasions they used visual images of Magna Carta as a symbol of their right to claim the civil liberties possessed by Englishmen. In 1768, Paul Revere, a silversmith, produced a beautiful silver punch bowl in honour of several leading ‘Sons of Liberty’ in Massachusetts. He decorated this with references to John Wilkes and his notorious publication, the North Briton, number 45 and added flags representing Magna Carta and the English Bill of Rights of 1689 on either side of this image. In the same year, the title page to the third edition of John Dickinson’s influential political tract, Letters from a Farmer in Pennsylvania, shows him standing with Magna Carta under his right elbow and a book by Sir Edward Coke on his bookshelf. When the American patriots decided to publish the Journal of the Proceedings of the [Continental] Congress held at Philadelphia, on 5 September 1774 the title-page was decorated with an image of twelve hands grasping in unison a pillar resting upon a base entitled Magna Carta. On 15 December 1774, the New York Journal was illustrated with a similar design, but this time it was encircled by intertwined snakes as further proof that the American patriots were establishing their political unity. In July 1775, Maryland published a four-dollar paper banknote, whose design included ‘Liberty’ handing a petition to ‘Britannia’, who is being restrained by King George III, who is shown trampling upon Magna Carta. Finally, the Great Seal of Massachusetts, designed in 1775, depicts a colonist holding a sword in his right hand and Magna Carta in his left hand.27
Interesting and important as such symbols were, they were not as significant or as influential in rallying the American colonists against British policies as the arguments produced in law courts, speeches, debates and printed publications. Many of these cited Magna Carta in support of colonial claims to their rights and liberties and their protests against Britain’s misuse of its judicial, executive and legislative powers. As early as 1761, James Otis challenged the right of the king’s officials in Massachusetts to use ‘writs of assistance’, a form of general warrant, allowing the examination of the premises of Boston merchants on the mere suspicion that smuggled goods might be located there. In winning his case, Otis appealed to Magna Carta to support the argument that a specific charge needed to be made before such an examination of private property could be undertaken.28 When the British parliament passed the Sugar Act in 1764, it determined that those colonists, who attempted to avoid paying customs or excise duties, would be prosecuted in a Vice-Admiralty court established at Halifax, Nova Scotia. There, the charges would not be heard by juries made up of local colonists, but heard by judges appointed by the crown. The Townshend Acts of 1767 established additional Vice-Admiralty courts in Boston, Philadelphia and Charleston, which were used even more frequently by customs collectors. The result was repeated protests that the colonists were being denied legal rights that were not being denied to Britons charged with smuggling offences.29 A town meeting in Braintree, Massachusetts, in 1765, protested against the British attempt to use Vice-Admiralty courts to punish those who refused to pay taxes levied by the Westminster parliament, because such trials would not be heard by a jury, which was a policy ‘directly repugnant to the Great Charter itself’.30 In September 1765, the colonial legislature in Pennsylvania resolved: ‘That the vesting an authority in the courts of admiralty to decide in suits relating to the stamp duties, and other matters, foreign to their jurisdiction, is highly dangerous to the liberties of his majesty’s American subjects, contrary to Magna Charta, the great charter and fountain of English liberty, and destructive of one of their most darling and acknowledged rights, that of TRIALS BY JURIES.’31 A month later, the lower house of the Connecticut legislature condemned the Sugar Act of 1764, on similar grounds. Vice-Admiralty courts, used to prosecute those who tried to evade paying the Sugar duty, were charged with being ‘highly dangerous to the liberties of his Majesty’s American subjects, contrary to the great charter of English liberty, and destructive of one of their most darling rights, that of trial by juries, which is justly esteemed one chief excellence of the British Constitution’.32
In order to restrict the use of such prerogative courts, under the influence of the British executive, the legislative assemblies in several colonies began erecting their own courts and appointing their own judges so that judicial decisions in such cases could be resolved outside the king’s Vice-Admiralty courts. These courts advanced petitions against the oppressive use of the king’s courts and pressed for legislative action to be taken in the colonial assemblies without seeking the consent of the king.33 In June 1768, when John Hancock was prosecuted in the Vice-Admiralty court in Boston, for failing to get a permit to unload cargo from his sloop, Liberty, John Adams, the future second President of the United States, successfully defended him by maintaining that this prosecution was against the legal principles enshrined in chapter 29 of the 1225 version of Magna Carta.34 Adams highlighted and condemned the distinction that the Westminster parliament’s legislation had made between British subjects and American colonists:
What shall we say to this distinction? Is there not in this clause, a Brand of Infamy, of Degradation, and Disgrace, fixed upon every American? Is he not degraded below the Rank of an Englishman? Is it not directly a Repeal of Magna Charta, as far as America is concerned … This 29 Chap. of Magna Charta has for many Centuries been esteemed by Englishmen, as one of the noblest Monuments one of the firmest Bullwarks of their Liberties … The [Sugar Act] takes from Mr Hancock this precious Tryal Per Legem Terra [by the law of the land], and gives it to a single Judge. However respectable the Judge may be, it is however an Hardship and severity, which distinguishs my Clyent from the rest of Englishmen.35 When, in 1772, Britain attempted to put on trial far outside the colony those colonists charged with burning one of His Majesty’s revenue ships, which was endeavouring to prevent smuggling in the colonies, Chief Justice Stephen Hopkins of Rhode Island successfully maintained that such an action would be a violation of the right enshrined in Magna Carta that any accused person should always be tried by a jury composed of men living in the vicinity of where the crime took place.36 After the Boston Tea Party of 16 December 1773, when some colonists attacked British merchant ships importing tea into the colony, the British parliament passed the Intolerable or Coercive Acts of 1774 to punish Massachusetts. Of these, the Administration of Justice Act allowed the British authorities to prosecute anyone accused of attacking the property of British merchants in trials held far outside the American colonies. Leading American patriots, including Thomas Jefferson, protested that it was contrary to Magna Carta and the common law to hold a trial outside the locality where the offence took place.37 When leading American colonists convened to discuss how to unite in opposition to Britain’s imperial policies, in the First Continental Congress held in Philadelphia, in October 1774, they passed resolutions insisting that the colonists had inherited all the rights and liberties of Englishmen under the common law and the British constitution. Their fifth resolution stated: ‘That the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law.’38 They undoubtedly believed that this claim was based on chapter 29 of the 1225 version of Magna Carta. When South Carolina threw off its allegiance to George III, in early 1776, its Chief Justice, William Henry Drayton, expressed deep satisfaction that British efforts to abolish the right of trial by jury, in contempt of Magna Carta, would no longer be tolerated under the independent state’s new constitution.39 When, in July 1776, the American colonists finally drafted their Declaration of Independence, their long list of grievances, against the British king, ministers and parliament, included the charges that Britain had used Vice-Admiralty courts where judicial decisions had been reached without juries and that efforts had been made by Britain to put colonists on trial in courts located far beyond the borders of their provinces.40
Far more important than the colonial accusations that Britain was betraying the legal principles enshrined in Magna Carta were the repeated claims made in America that Britain was acting contrary to Magna Carta in maintaining that the Westminster parliament had the right to levy direct internal taxes on the American colonies without the consent of the colonial legislatures. When parliament attempted to levy the Stamp Tax on the colonies, in 1765, the colonists quickly pointed out that consent to taxes must be given by those required to pay them and hence internal taxes levied in America required the consent of local colonial legislatures.41 They therefore vehemently protested that the Stamp Tax was contrary to the constitutional principle of ‘no taxation without representation’, a claim very much based on Sir Edward Coke’s assertion in the early seventeenth century that Magna Carta had laid down that the crown could only levy taxes with the consent of parliament. On 28 September 1765, the lower house of the Maryland legislative assembly resolved unanimously, ‘that it was granted by Magna Charta, … that the subject should not be compelled to contribute any tax, tallage, aid or other like charge, not set by the common consent of parliament’,42 and hence without the consent of the colonial legislatures. In his resolutions against the Stamp Act presented to the Massachusetts House of Representatives, on 29 October 1765, Samuel Adams, a leading Patriot, insisted that a major pillar of the British constitution, to which the colonists could also lay claim, was the principle of no taxation without representation, which ‘together with all other essential rights, privileges, and immunities of the people of Great Britain, have been fully confirmed to them by Magna Charta’.43 The Massachusetts assembly went on to declare that the Stamp Act was invalid because it was ‘against Magna Charta and the natural rights of Englishmen, and therefore, according to Lord Coke, null and void’.44 The New York assembly also insisted in 1765 that no taxation without representation was ‘a fundamental principle … declared by Magna Charta’.45
Thomas Hutchinson, the Lieutenant-Governor of Massachusetts, was alarmed at the way local American patriots were exploiting Edward Coke’s interpretation of Magna Carta in order to resist the imposition of the Stamp Tax. He declared on 12 September 1765: ‘our friends to liberty take the advantage of a maxim they find in Lord Coke that an Act of parliament against Magna Carta or the peculiar rights of Englishmen is ipso facto void … This, taken in the latitude the people are often disposed to take it, must be fatal to all government, and it seems to have determined [a] great part of the colony to oppose the execution of the act with force.’46 The fierce colonial opposition to the Stamp Act was not confined to Massachusetts. Several colonies agreed to send representatives to a Congress in New York in order to coordinate their opposition to the Stamp Act. There they resolved that ‘The invaluable rights of taxing ourselves … are not, we most humbly conceive Unconstitutional; but confirmed by the great CHARTER of English Liberty’.47 When the Stamp Act was repealed by the Westminster parliament in 1766, Jonathan Mayhew, in Boston, celebrated this decision on the basis that taxation by consent was a natural right, but it was also a right based on Magna Carta: ‘It shall be taken for granted that this natural right is declared, affirmed and secured to us, as we are British subjects, by Magna Charta; all acts contrary to which are said to be ipso facto null and void.’48 On 27 January 1772, Samuel Adams, now one of the most outspoken of American Patriots, published in the Boston Gazette Edward Coke’s claim that Magna Carta was ‘declaratory of the principal grounds of the fundamental laws and liberties of England’. He added, however, ‘whether Lord Coke has expressed it or not … an act of parliament made against Magna Charta in violation of its essential parts, is void’.49 In 1775, Moses Mather insisted that the charters of the American colonies were, like Magna Carta, permanent, perpetual and unalterable. He claimed that chapter 29 of Magna Carta established that British subjects, on both sides of the Atlantic, were liable to no taxes and bound by no laws except those made and imposed by their own consent.50