The claim that the principle of no taxation without representation was enshrined in Magna Carta was supported by political commentators in America51 and even by a few in Britain. In July 1768, John Wilkes, a leading pro-American campaigner in London, proclaimed:
Liberty I consider as the birthright of every subject of the British empire, and I hold Magna Charta to be as full in force in America as in Europe. I hope that these truths will become generally known and acknowledged through the wide extended dominions of our sovereign, and that a real union ofthe whole will prevail to save the whole, and to guard the public liberty, if invaded by despotic ministers, in the most remote, equally as in the central parts of this vast empire.52 Shortly before war broke out, James Burgh, a supporter of parliamentary reform in Britain, declared:
Magna Charta, and the Bill of Rights, prohibit the taxing of the mother country by prerogative, and without the consent of those who are to be taxed. If the people of Britain are not to be taxed but by parliament; because otherwise they might be taxed without their own consent; does it not directly follow, that the colonists cannot, according to Magna Charta and the bill of rights, be taxed by Parliament, so long as they continue unrepresented, because otherwise they may be taxed without their consent.53 In an effort to stop the war in its early stages some British supporters of the American cause formed the London Association in 1775.54 They attacked the British government’s determination to use armed force in the colonies and denied that the Americans desired complete independence.55 To justify their position, they published a pamphlet, in 1776, setting out the most important terms of Magna Carta, complete with Edward Coke’s remarks on these.56 About the same time, another British commentator, who regarded Magna Carta as ‘still the impregnable fortress of our privileges’, was even more explicit:
By Magna Charta … no subject should be compelled to contribute any tax … not set by the common consent of Parliament. Our colonists are subjects of the British dominions. In the parliament of Great Britain, which is only a part of those dominions, they are not represented. The imposition, therefore, of any tax, by that Parliament, must be without the consent of the colonists; and it follows that they are absolutely exempted from the necessity of submitting to it.57
On both sides of the Atlantic, however, American Patriots and British radicals began to rely more on the belief that their political rights and liberties were better defended by appeals to fundamental law58 and natural rights than by Magna Carta. James Otis59 and James Wilson,60 for example, maintained that English liberties had existed long before Magna Carta and that the great charter had merely declared what had long been regarded as natural rights and fundamental law in England. In 1767, Silas Downer of Providence Rhode Island declared of the doctrine of no taxation without representation that: ‘It is a natural right which no creature can give, or hath a right to take away. The great charter of liberties, commonly called Magna Charta, doth not give the privileges therein mentioned, nor doth our Charters, but must be considered as only declaratory of our rights, and in affirmance of them.’61 Samuel Langdon, President of Harvard College, proclaimed in a sermon preached in 1775, ‘Thanks be to God that He has given us, as men, natural rights, independent of all human laws whatsoever, and that these rights are recognized by the grand charter of English liberties.’62 William Gordon went so far as to claim that Magna Carta provided no solid security for the rights and liberties of the British or the American people when parliament could amend or ignore its terms by passing statute laws.63
As the American crisis developed, however, these concerns did not prevent appeals being made to Magna Carta in order to justify using force to oppose the British government and parliament, both of which were increasingly regarded by the American colonists as arbitrary and oppressive. As early as November 1772, some Boston Patriots declared that Magna Carta ‘was justly obtain’d of King John sword in hand: and peradventure it must one day sword in hand again be rescued and preserv’d from total destruction and oblivion’.64 In ‘The Forester’s Letters’, Thomas Paine defended the natural rights of the colonists and denied Magna Carta had created any new rights, but he did concede that 1215 had shown how a king could be forced to renounce tyranny.65 Charles Carroll also stressed that Magna Carta had been achieved by force,66 while John Adams used the events of 1215 to claim: ‘Did not the English gain by resistance to John, when Magna Charta was obtained’.67 In ‘A Pastoral Letter’ of 1775, four Presbyterian ministers in Pennsylvania advised their co-religionists in North Carolina that: ‘To take any man’s money, without his consent is unjust and contrary to reason and the law of God … it is contrary to Magna Charta, or the Great Charter and Constitution of England; and to complain, and even to resist such a lawless power, is just and reasonable, and no rebellion.’68 At a provincial convention in Philadelphia, in January 1775, James Wilson claimed that the armed resistance now being contemplated by the American colonists was the same as the barons had used in securing Magna Carta in 1215. In his view, the right of resistance was founded on both the letter and the spirit of the British constitution.69 When some colonial representatives at the second Continental Congress, held in Philadelphia in 1776, questioned the legitimacy of taking up arms against King George III, Wilson pointed out that such an objection had not prevented the English barons from resisting the tyranny of King John in 1215 and gaining the concessions he agreed to in Magna Carta.70
When the American colonists finally took up arms to secure their independence from Britain they began creating new state constitutions for their provinces. In drafting written constitutions, they hoped to create fundamental laws, which could not so easily be amended or revoked by a sovereign legislature as had happened in Britain in recent decades. Many colonies, including Virginia, Maryland, Delaware, North Carolina and South Carolina in 1776, New York in 1777, Massachusetts in 1780, and New Hampshire in 1784, incorporated in their new constitutions the essential features of chapter 29 of the 1225 version of Magna Carta.71 The Virginia Bill of Rights of 1776 declared that an accused person should receive a speedy trial before an impartial jury in the locality where the offence had occurred, that ‘no man could be deprived of his liberty, except by the law of the land or the judgment of his peers’, and that no excessive fines should be imposed nor cruel or unusual punishments inflicted.72 Several states explicitly guaranteed that ‘no person shall be deprived of life, liberty, or property, without due process of law’, that any accused person must be tried by the law of the land and by a jury of his peers in the vicinity where the offence took place, and that justice should not be sold, denied or delayed.73 In 1779, John Adams, in Massachusetts, declared that any government seeking to serve the public interest must be a government of laws not of men. In England, Magna Carta had been an attempt to serve such a purpose, but its specific terms and general principles had been frequently broken by king or parliament and the people had often been forced to repair the damage done to their rights and liberties. The American colonies now fighting for their independence must try to avoid such a fate by clearly stating their rights and liberties, and limiting the powers of their legislatures in their new written constitutions.74 Adams helped ensure that the Massachusetts constitution of 1780 included no less than three articles, which could be traced back to the terms of Magna Carta.75
After securing their independence in 1783 the new American states recognized the need to establish a more effective national government than they had managed to achieve during the War of Independence. In the debates on establishing a new Federal Constitution that took place in 1787, in Philadelphia, there was little discussion among the representatives about how it might be influenced by the terms and principles of Magna Carta. James Wilson even pointed out that the Americans no longer had any need to look back to Magna Carta for inspiration because that charter of rights and liberties had been granted to the English people by their monarch, whereas the United States was a republic in which the people were establishing their own rights by their own efforts. In his view, the American people would retain all the rights and liberties not explicitly surrendered in their new Federal Constitution.76 The terms of the Federal Constitution were drafted in 1787, but it was then sent out in 1788 for ratification by the states. This process, which lasted some months, led to disputes between Federalists and Anti-Federalists about whether the new constitution had done enough to protect the rights and liberties of individuals. Although it has been suggested that there was little discussion of Magna Carta by those chosen to ratify the constitution,77 there was in fact some discussion of its relevance by major commentators on the issues at stake. The leading Federalists, James Madison and Alexander Hamilton, shared James Wilson’s view that there was no need to include specific guarantees for the rights of the individual in the terms of the Federal Constitution. They maintained that whereas Magna Carta had been needed by the English people to secure their rights and liberties against an arbitrary and oppressive monarch, in America’s new republic there was no need to guarantee the rights of the individual since the powers of the Federal legislature and the elected president were clearly limited by the express terms of the new constitution. In The Federalist Papers, Alexander Hamilton specifically mentioned that there was no need to emulate the English people in securing a Magna Carta style charter of liberties. Such a charter could ‘have no application to constitutions founded [like the Federal Constitution] upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; as they retain every thing they have no need of particular reservations … here is a better recognition of popular rights’.78 Madison claimed that the English people’s ‘Magna Charta does not contain one provision for the security of these rights, respecting which the people of America are most alarmed. The freedom of the press and rights of conscience, those choicest privileges of the people, are unguarded in the British constitution.’79 James Iredell and Samuel Johnston both opposed the demand for a specific Bill of Rights to be added to the Federal Constitution because the evidence of British history showed that a sovereign legislature there had possessed the authority to alter or revoke various parts of Magna Carta.80 Governor Johnston asked those at the North Carolina Convention, ‘What is Magna Charta? It is only an act of Parliament. Their Parliament can, at any time, alter the whole, or any part of it. It is no more binding on the people than any other law Parliament has passed.’81 In the new American republic, by contrast, the powers of the American Congress were clearly circumscribed by the terms of the Federal Constitution. David Ramsay, one of the first historians of the American Revolution, made this distinction crystal clear in an oration celebrating the anniversary of the Declaration of Independence in 1794. While willing to accept that Magna Carta had been freely granted to the English people by their king, he nevertheless concluded, ‘What is said to be thus given and granted by the free will of the sovereign, we, the people of America, hold in our own right. The sovereignty rests in ourselves, and instead of receiving the privileges of free citizens as a boon from the hands of our rulers, we defined their powers by a constitution of our own framing, which prescribed to them, that this far they might go, but no farther. All power, not thus expressly delegated, is retained.’82
Despite such efforts, Anti-Federalists remained seriously concerned about the absence of any mention in the Federal Constitution of the rights and liberties of the individual. They maintained that Magna Carta had indeed provided an important security for the rights and liberties of Englishmen and they wished to see something similar included in the new constitution before it was fully ratified.83Representatives from Virginia, for example, put forward the view that the Federal Constitution needed to be amended to ensure that such rights and liberties as had been protected in England by Magna Carta would be secured in the new republic. They urged that no accused person should be punished except by due process, according to the law of the land; that justice should neither be delayed nor denied; and that an accused person should be given a fair and speedy trial before a jury drawn from the area where the offence had been committed.84 These were all civil rights, which the Americans had long believed were enshrined in chapter 29 of the 1225 version of Magna Carta.
In the event, Congress decided to give to the demands of the Anti-Federalists. In 1791, a Bill of Rights, proposed by the leading Federalist, James Madison, added ten amendments to the Federal Constitution.85 Several of these amendments were clearly influenced by some of the most famous and cherished terms of Magna Carta. The First Amendment guaranteed citizens the right to petition for the redress of grievances. The Fifth Amendment declared that ‘No person shall be … deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation’. This clearly owed much to chapter 29 of the 1225 version of Magna Carta. The Sixth Amendment, also clearly influenced by Magna Carta, provided that ‘the accused shall enjoy the right of a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed’. The Seventh Amendment established jury trials in civil cases and the Eighth Amendment prohibited cruel and unusual punishments; both of which were influenced by Magna Carta, through earlier English statutes and American state constitutions.86 In the early years of the republic (and long afterwards) appeals were made to Magna Carta a great many times by American lawyers pleading their cases before both state and federal courts.87
Before and during the War of Independence a number of American Patriots had used the example of the English barons using force to compel King John to accept the terms of Magna Carta to justify their own resort to arms against what they regarded as Britain’s oppressive and arbitrary policies since the early 1760s. Before and during the drafting of the Federal Constitution a number of Americans commented on the difficulties that the English had had in securing the rights and liberties, which they believed they had been granted by Magna Carta. The Americans were aware that an effort had been made in chapter 61 of the original Magna Carta of 1215 to ensure that King John would observe the terms in the charter to which he had given his consent. In this chapter the rebellious barons had proposed electing representatives from their ranks, who could determine whether an appeal to arms needed to be made in order to ensure that King John fulfilled his obligations under the terms set out in Magna Carta. The Americans knew, however, that this chapter had been omitted from all subsequent versions and confirmations of Magna Carta. No mechanism therefore had ever been established to ensure that the terms of Magna Carta could be enforced. The Americans soon found a means by which the authority of the executive and legislature created by the Federal Constitution could be effectively prevented from exceeding the powers granted to them by the terms of this constitution. A Supreme Court was established quite independent of the executive and the legislature. The justices of the Supreme Court soon established their power of judicial review. They took it upon themselves to adjudicate whether any action by the executive or the legislature in the United States could be judged as exceeding the powers granted to these institutions by the Federal Constitution. In 1803, in the case of Marbury v. Madison, Chief Justice John Marshall used the arguments previously used by Edward Coke in England in the early seventeenth century to assert that the Supreme Court had the right to declare some executive or legislative actions to be unconstitutional.88 The principle and practice of Judicial Review became an extremely important, if often contested, aspect of the American Constitution.89 When the Supreme Court was housed in its fine building in Washington DC it was therefore appropriate that its magnificent bronze doors included among it eight panels, an image of King John agreeing to Magna Carta at Runnymede in 1215, another of King Edward I confirming Magna Carta in 1297, and a third showing Sir Edward Coke disputing with King James I.
Magna Carta and the French Revolution
From its first dramatic months in 1789, and for many years thereafter, the French Revolution stimulated an intense ideological debate in Britain that deeply polarized the nation at all social levels. A vast amount of propaganda – speeches, sermons, books, pamphlets, periodicals, newspapers, plays, poetry, novels and graphic satirical prints – discussed whether the French Revolution should encourage British reformers to demand radical changes to the constitution or whether it should stimulate firm opposition to any attempt to emulate what was happening in France. This profound and heated debate involved commentators such as Richard Price, Thomas Paine, and James Mackintosh, who promoted the natural, universal and inalienable rights of all men, and critics of this approach, such as Edmund Burke and Arthur Young, who appealed to the historic rights of Britons. Neither side in this great debate made substantial use of Magna Carta, although both sides were quite ready to blame the other for endangering its benefits.
While many British critics of the French Revolution praised the historic rights of Britons and the virtues of Britain’s ancient constitution, there was relatively little discussion of the particular merits of Magna Carta itself and few claims that it granted British subjects extensive political rights. The strongest endorsement of Magna Carta made by a British critic of the French Revolution was written by James Thomson. He contrasted the virtues of Magna Carta with the failings of the French ‘Declaration of the Rights of Man and the Citizen’. He claimed that the authors of Magna Carta accepted the existing social distinctions in society, calmly but firmly sought the redress of specific grievances, and endeavoured to achieve a fair and legal compact between the governor and the governed. By contrast, the authors of the French Declaration were influenced by metaphysical doctrines and abstract principles, placed themselves in an imaginary situation, and tried to establish a perfect system of government. The English gained practical benefits from their charter of liberties. The French were content with a mere declaration of rights.90
A few British critics of the French Revolution did acknowledge that Magna Carta was a fundamental law, but, in doing so, they claimed that it was a confirmation of older laws. They laid particular stress on the legal benefits granted by chapter 29, rather than any political liberties it was supposed to have granted.91 Edmund Burke admitted that Magna Carta could be taken as a fundamental law, but he refused to believe that therefore it was for ever unalterable and could not be changed by an act of parliament: ‘Now, although this Magna Charta, or some of the statutes establishing it, provide that the law shall be perpetual, and all statutes contrary to it shall be void: yet I cannot go so far as to deny the authority of statutes made in defiance of Magna Charta and all its principles. This however I will say, that it is a very venerable law, made by very wise and learned men, and that the legislature in their attempt to perpetuate it, even against the authority of future parliaments, have shewn their judgment that it is fundamental’.92 Henry Maddock accepted that if any laws were fundamental, then Magna Carta was one of them, but he went on to assert: ‘I think it necessary that Parliament should have a power over them – I think they legally have such a power’.93 Robert Hobart, Chief Secretary to the Lord Lieutenant of Ireland, insisted that parliament not Magna Carta established which men had the right to vote in parliamentary elections.94 John Gifford, a deeply conservative and intensely patriotic British propagandist,95 went so far as to compare the actions of the English barons in 1215 with the violent activities of the French Jacobins. Like the French Jacobins, the English barons did not discriminate between liberty and licentiousness, but were eager only to advance their own interests and to pursue their ambitious political projects.96
Moderate British reformers in the 1790s were still prepared to appeal to Magna Carta, particularly to chapter 29, in defence of their legal rights.97 In defending Thomas Paine against a charge of seditious libel, Thomas Erskine claimed that King John had been forced to grant Magna Carta at Runnymede: ‘The people took it as their inheritance; they had a right to it’.98 The members of the Revolution Society, marking the centenary of the Bill of Rights in 1789, even proclaimed: ‘May the principles of Magna Charta … be deeply engraved for ever on every British breast’.99 The development of a loyalist reaction in Britain, in and out of parliament, led to great efforts being made to silence those British radicals who sympathized with the revolutionary ideas being propagated in France. This convinced many radicals in Britain that Magna Carta did not provide them with sufficient legal guarantees of their civil liberties nor a strong enough role in the political affairs of the nation. The London Corresponding Society conceded that only chapters 14 and 29 of Magna Carta were still in existence, and that even the benefits and provisions of chapter 29 were being eroded by the government’s repressive policies.100 Maurice Margarot acknowledged at his trial for sedition that Magna Carta had not done enough to secure the rights and liberties of the people,101 while his fellow London radical, John Thelwall, lamented that the provisions of Magna Carta had mouldered away.102 Thomas Paine pointed out that Magna Carta had done no more than compel those in power to renounce some of their assumptions, but it had failed to destroy their power and could not claim to have given the English people a constitution.103 The more moderate Thomas Oldfield went further in bluntly asserting that Magna Carta had not recognized one essential political right of the people, but had only protected the feudal privileges of the barons.104 Charles Pigott criticized the British people for not showing sufficient spirit to defend the rights and liberties which they had long claimed under Magna Carta.105 Other reformers and radicals tried to infuse such a spirit by claiming that the benefits of Magna Carta had been obtained by force and reminding the British people (and warning the British government) that they still possessed the right to resist oppression and the abuse of power.106 Few radicals in Britain, though far more in Ireland, were prepared to take up arms to defend their civil liberties and extend their political rights in the 1790s, when those in power, with the support of most men of property and influence, were prepared to stamp out any effort to promote the political principles or adopt the violent methods of the French revolutionaries.