8
KING JOHN AND THE TREE OF LIBERTY
KING JOHN AND THE TREE OF LIBERTY
MAGNA CARTA, 1215, AT RUNNYMEDE
Magna Carta, extorted by the barons and high clergy of England from King John in 1215 at Runnymede, is often cited as the beginning of American constitutional history. Of course, no one knows when a constitution begins, for a constitution no more begins at a given moment of writing a paper than God begins when a church of stone and mortar is built in a given place at a given time.
But 1215 is a convenient historical date, and may without much quibbling be set down as consitutionally significant. In truth and in fact, Magna Carta is the basis of our liberties because we think so, and would have it so. That not one in a hundred thousand of us has ever so much as glanced at a single word in it, or knows anything of the historical fictions that have grown up about it, does not detract from its greatness.
In our high school and college history books we see pictures of King John properly robed in brilliant colors, surrounded by a brilliant assemblage of the nobility, dejectedly, yet magnificently, signing Magna Carta, the Great Charter of our Liberties. But the facts are that he did not sign it, that he was a plain-looking drably dressed fellow, and that the barons who forced him to agree were a lot of selfish men who, on their way to Runnymede, had stopped in London long enough to slaughter and pillage the Jews.
Moreover, Magna Carta did not set up constitutional government or protect the liberty of the people of England.
It did not guarantee trial by jury.
It gave no guarantee of religious liberty.
Nor habeas corpus.
It did not guarantee equality before the law in any way whatever.
And the prohibition of monopolies, generally claimed as one of its important sections, is simply not a part of it.
"Liberty" was not even mentioned in the instrument. "Liberties" were mentioned, but they consisted of special privileges permitting the nobility, instead of the king, to do with the people about as they pleased. Throughout the whole instrument there is no conception of liberty as we today understand it—liberty for men of all degrees and conditions.
It was a reactionary instrument, a sort of private treaty between the King and the nobles and higher clergy. Most of the modern authorities on Magna Carta do not regard it as having had any constitutional worth at the time it was written.
But Professor William S. McKechnie of Glasgow, in his great work, Magna Carta, says:
Professor McKechnie shows how Magna Carta was picked up by the people as a symbol of justice and liberty, and upon it was built a huge edifice of constitutional rights. He shows that the Charter became a weapon to be repeatedly used by broadening sections and groups of the population in their struggle against despotism.
Historically, the background of Magna Carta was the continued demands for money and service made upon the barons by the King. He kept levying scutage, or war tax, so that he could meddle more in continental wars. He restricted the feudal rights of the barons. So the baronial party rose and made war on the King. They wanted the King to let them alone, so they could stay home and exploit the people. The people did not rebel, and the barons certainly did not rise on their behalf; in the whole affair the people played no part.
The provisions of Magna Carta are interesting. As I have already shown, it was devoid of constitutional principles. It was merely a contract between the King and certain pompous individuals with resounding titles.
It was a long, unparagraphed instrument, with no numbers, and no form to its preamble.
Out of the Preamble and sixty-three chapters into which scholars have divided the Magna Carta, only five chapters have reference to any constitutional principles. Not a single word gives the people any vestige of respresentative rights; in fact, there is not even an outline for governmental machinery, nor is any method whatever provided for the people to share in the grant.
However, one cannot consider Magna Carta as merely the paper written in 1215. It was re-issued and re-affirmed numerous times by later kings; hence it became not one charter, but physically a series of charters. "Magna Carta" grew into a concept of liberty rather than a paper or series of papers.
Economically, as well as symbolically, the Magna Carta was of great importance. It contained provisions constituting a sort of primitive NRA. These covered such matters as the debts of the barons; standardization of measures for wine and cloth; fines; duties of guardians; regulations governing the use of forest, land and water (conservation of natural resources); fees and taxation; the war-making power; the trial of cases; rights of widows; problems of landlord and tenant; and a host of other details that would take a forest of paper to enumerate.
It is true that the number of people directly involved was exceedingly small, because the number of people owning land was exceedingly small. But after all, the charter did represent the will of more people than did the decrees of one selfish King; in that sense it was an extension of economic and political liberty. This limitation of the King's power by the feudal barons served as an historical precedent for its limitation by the money-changers and merchants of London after Cromwell's time.
Thus Magna Carta gradually grew in the minds of the people as the Great Charter of Liberty. It has proved through our history a sort of spiritual shield of liberty, the original protector of habeas corpus, trial by jury, due protection by the courts of the individual, and all those other rights that make for human decency, dignity, self-respect and free government.
In it are the words used in our own written constitution, "Law of the Land." They are in Chapter 39, considered by most historians and legal writers as the most important provision of Magna Carta. Upon it was developed "due process of law," and many of our theories of justice and of fair court procedure.
Magna Carta was not a people's charter. It changed their miserable lot not one iota. But it did set forth for English-speaking people certain rights and liberties which all men desire and which many have since won. It is the first of a series of documents marking the people's long up-hill battle for their freedom.
But 1215 is a convenient historical date, and may without much quibbling be set down as consitutionally significant. In truth and in fact, Magna Carta is the basis of our liberties because we think so, and would have it so. That not one in a hundred thousand of us has ever so much as glanced at a single word in it, or knows anything of the historical fictions that have grown up about it, does not detract from its greatness.
In our high school and college history books we see pictures of King John properly robed in brilliant colors, surrounded by a brilliant assemblage of the nobility, dejectedly, yet magnificently, signing Magna Carta, the Great Charter of our Liberties. But the facts are that he did not sign it, that he was a plain-looking drably dressed fellow, and that the barons who forced him to agree were a lot of selfish men who, on their way to Runnymede, had stopped in London long enough to slaughter and pillage the Jews.
Moreover, Magna Carta did not set up constitutional government or protect the liberty of the people of England.
It did not guarantee trial by jury.
It gave no guarantee of religious liberty.
Nor habeas corpus.
It did not guarantee equality before the law in any way whatever.
And the prohibition of monopolies, generally claimed as one of its important sections, is simply not a part of it.
"Liberty" was not even mentioned in the instrument. "Liberties" were mentioned, but they consisted of special privileges permitting the nobility, instead of the king, to do with the people about as they pleased. Throughout the whole instrument there is no conception of liberty as we today understand it—liberty for men of all degrees and conditions.
It was a reactionary instrument, a sort of private treaty between the King and the nobles and higher clergy. Most of the modern authorities on Magna Carta do not regard it as having had any constitutional worth at the time it was written.
But Professor William S. McKechnie of Glasgow, in his great work, Magna Carta, says:
The greatness of Magna Carta lies not so much in what it was to the framers of 1215, as in what it afterwards became to the political leaders, judges and lawyers, and to the entire mass of men of England in later ages.
Professor McKechnie shows how Magna Carta was picked up by the people as a symbol of justice and liberty, and upon it was built a huge edifice of constitutional rights. He shows that the Charter became a weapon to be repeatedly used by broadening sections and groups of the population in their struggle against despotism.
Historically, the background of Magna Carta was the continued demands for money and service made upon the barons by the King. He kept levying scutage, or war tax, so that he could meddle more in continental wars. He restricted the feudal rights of the barons. So the baronial party rose and made war on the King. They wanted the King to let them alone, so they could stay home and exploit the people. The people did not rebel, and the barons certainly did not rise on their behalf; in the whole affair the people played no part.
The provisions of Magna Carta are interesting. As I have already shown, it was devoid of constitutional principles. It was merely a contract between the King and certain pompous individuals with resounding titles.
It was a long, unparagraphed instrument, with no numbers, and no form to its preamble.
Out of the Preamble and sixty-three chapters into which scholars have divided the Magna Carta, only five chapters have reference to any constitutional principles. Not a single word gives the people any vestige of respresentative rights; in fact, there is not even an outline for governmental machinery, nor is any method whatever provided for the people to share in the grant.
However, one cannot consider Magna Carta as merely the paper written in 1215. It was re-issued and re-affirmed numerous times by later kings; hence it became not one charter, but physically a series of charters. "Magna Carta" grew into a concept of liberty rather than a paper or series of papers.
Economically, as well as symbolically, the Magna Carta was of great importance. It contained provisions constituting a sort of primitive NRA. These covered such matters as the debts of the barons; standardization of measures for wine and cloth; fines; duties of guardians; regulations governing the use of forest, land and water (conservation of natural resources); fees and taxation; the war-making power; the trial of cases; rights of widows; problems of landlord and tenant; and a host of other details that would take a forest of paper to enumerate.
It is true that the number of people directly involved was exceedingly small, because the number of people owning land was exceedingly small. But after all, the charter did represent the will of more people than did the decrees of one selfish King; in that sense it was an extension of economic and political liberty. This limitation of the King's power by the feudal barons served as an historical precedent for its limitation by the money-changers and merchants of London after Cromwell's time.
Thus Magna Carta gradually grew in the minds of the people as the Great Charter of Liberty. It has proved through our history a sort of spiritual shield of liberty, the original protector of habeas corpus, trial by jury, due protection by the courts of the individual, and all those other rights that make for human decency, dignity, self-respect and free government.
In it are the words used in our own written constitution, "Law of the Land." They are in Chapter 39, considered by most historians and legal writers as the most important provision of Magna Carta. Upon it was developed "due process of law," and many of our theories of justice and of fair court procedure.
Magna Carta was not a people's charter. It changed their miserable lot not one iota. But it did set forth for English-speaking people certain rights and liberties which all men desire and which many have since won. It is the first of a series of documents marking the people's long up-hill battle for their freedom.
