TBA Law Blog


Posted by: Russell Fowler on Nov 1, 2014

Journal Issue Date: Nov 2014

Journal Name: November 2014 - Vol. 50, No. 11

The Tennessee Bar Journal welcomes a new column this month. Russell Fowler will look to the past to help inform the practice of today in “History’s Verdict.” His column will appear three times a year.

2015 is the 800th anniversary of the Magna Carta. It is time to pause and ponder its importance and plan how to commemorate this momentous event, for its influence on our law is incalculable and continual.

In 1957 the American Bar Association erected a monument at the site of is enactment. This was fitting. We lawyers are the true descendants of the brave barons who compelled its adoption, for we are entrusted with keeping it alive and relevant today. It is the bar’s original mission statement, our first noble commission to guard freedom, protect independent courts and ensure justice for all. As John W. Davis said:

Every would-be despot has found it necessary to silence the tongues of his country’s lawyers. For this, brethren of the Bar, is our supreme function — to be the sleepless sentinels on the ramparts of human liberty and there to sound the alarm whenever an enemy appears. What duty could be more transcendent and sublime? What cause more holy?[1]

So let us review the charter’s significance and how this now ragged piece of medieval parchment came to be the keystone of liberty and the rule of law for eight centuries.

Rebellious barons required King John of England to approve Magna Carta (“the Great Charter”) on June 15, 1215. By the close of the Middle Ages it had become binding legal precedent and a permanent check on royal authority as it was reaffirmed by subsequent sovereigns. It is the foundation of the concept of constitutional government and individual liberties, a revolutionary declaration of not only the privileges of the powerful, but the political, judicial and commercial rights of Englishmen of every rank. It is thus the forerunner of world democratic achievements, including the English Bill of Rights, the Declaration of Independence, and the Constitution of the United States and its Bill of Rights.[2] The Tennessee Constitution clearly reflects the language of Magna Carta, most prominently the powerful Law of the Land Clause[3] (Tennessee’s Due Process Clause) and the Open Courts Clause.[4] In almost the exact wording as Tennessee’s Constitution, Magna Carta grandly proclaims:

No Freeman shall be taken or imprisoned, or be disseized of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land.[5]

Magna Carta’s roots are found in the reign of John’s father, the energetic and creative Henry II, the first ruler of the Plantagenet dynasty and “the father of the common law.” As part of his centralization of power following years of chaos and civil war, Henry forged a national judicial system through the uniformity and precedential effect of legal principles, achieved with the advent of the first publication of judicial opinions and stare decisis, and roving, professional, royal courts at the expense of manorial tribunals applying haphazard and barbaric local customs and dominated by local lords.[6] This encouraged the formation of an accountable bench and a trained bar. He also standardized and nationalized the use of trial by jury in both criminal and civil cases and opened his courts to the poor. Henry’s purpose was twofold: control and justice. As one historian said: “There was in Henry’s character a combination of terrifying power and a humaneness alien to the age.”[7] Ironically this concentration of power by regularization and consolidation of the law would be the impetus for constraining Henry’s less able son. Although deprived of judicial powers, the baronage came to appreciate predictable laws and procedures and objective implementation of feudal obligations by learned and impartial judges, especially after the advent of John’s abuses.

John’s malfeasance included coercive taxation, unprecedented feudal fees, misuse of royal warships (often selling marriages to royal wards and landed widows or refusing to permit them to marry to keep control of their estates), unlawful confiscation of lands, closure of courts and imposition of arbitrary and self-serving judicial decisions. Discontent with John’s rule was not limited to the lords, however. The lower aristocracy, churchmen, townspeople and growing commercial interests objected. Therefore, with widespread support, barons sought to preserve the law and defend the courts.

In fairness, John’s misrule is not completely to blame. He inherited the throne in 1199 without the popularity of his glamorous brother and predecessor, the crusading Richard the Lionheart, and he was encumbered with a bankrupt treasury, raging inflation and the moniker “John Lackland” because of the embarrassing absence of a bequest of land from his father. He was further hindered by a reputation for dishonesty, murmurings that he had stolen the crown by murdering his nephew, and excommunication by the Pope. His situation was brought to a crisis when he lost England’s French possessions. With military defeats of 1203–04, a disgraced John turned to tightening his control of England and raising funds to finance a new French war. When this second military campaign failed and he was forced to pay tribute to the French, John returned broke and determined to squeeze all the money he could from his already overtaxed realm.

At a meeting with the king in January 1215, the barons demanded reforms. But John, who was secretly preparing for war against his lords, demanded that the barons take a new oath of allegiance. Instead the barons mobilized and renounced their fealty to the king on May 5. Under the command of Robert FitzWalter, the rebels were welcomed in London by the cheering people on June 10 as John rushed to the safety of mighty Windsor Castle. After much negotiation, John agreed to terms on June 15 in the vibrant green meadow of Runnymede, and his seal was affixed to the instrument. On June 19 the barons reaffirmed their loyalty.

Magna Carta, first known as the “Articles of the Barons,” contains 63 provisions restricting royal power, clarifying feudal obligations and protecting rights, including those of the church, saying, “We will and firmly order that the English Church be free.”[8] It further provided redress of grievances concerning real property, granted baronial authority to block illegal taxation and taxation without representation, recognized merchants’ commercial rights, and restrained royal officials. It even protected widows from being compelled to marry and allowed them to gain control of their estates even if unwed; thus some nascent women’s rights were codified.

Although the barons were looking out for themselves when they included a provision stating they could only be tried by a jury of their “peers,” meaning fellow barons, this broadened to cover everyone and came to mean a jury of fellow citizens. Furthermore, Magna Carta guaranteed just and open courts and recognized the due process rights of all Englishmen, not just those of the barons. It eloquently commands access to justice for all, high and low, rich and poor, with these immortal words: “To no one will we sell, to no one will we refuse or delay, right or justice.”[9]

Mankind had never seen anything like it. Now there was earthly authority higher than the anointed king: the rule of law! Enforcement was entrusted to a council of 25 barons with the legal authorization to make war on the king if necessary,[10] thereby recognizing the right of revolution for breach of the societal contract and foreshadowing the political philosophies of John Locke and Thomas Jefferson. Predictably, John never intended to honor the agreement and was only stalling for time. He prepared for renewed military resistance and secured a ruling from the Pope declaring Magna Carta void.[11] Nevertheless, there was no turning back.

Although failing as a peace treaty, the Magna Carta swiftly won a reverence and majesty of its own far above any monarch’s and became the core of the English constitution. As for John, he died the following year while once again fleeing his barons, to be remembered as the villain in countless Robin Hood movies. Conversely, the concluding article of the Great Charter has proven magnificently true for eight centuries:

The men in our realm shall have and hold all the aforesaid liberties, rights and concessions well and peacefully, freely and quietly, fully and completely for them and their heirs of us and our heirs in all things and places forever.[12]

Magna Carta REFLECTIONS, CELEBRATIONS
This is not the first time the Tennessee Bar Journal has covered Magna Carta. Read the 1987 Journal with articles discussing its legacy and its role shaping the U.S. Constitution on the ABA’s webpage at http://www.americanbar.org/groups/bar_services/resources/magnacarta2015.html (click on “Bar Journal Articles” on the right side). The issue, which was celebrating the bicentenary of the U.S. Constitution, includes an address to the members of the Tennessee bar by Retiring Lord Chancellor of England Right Honorable Lord Hailsham, as well as pictures of TBA President-Elect Landis Turner presenting a plaque to Lord Hailsham, declaring him an honorary member of the TBA. An article by David V. Stivison, “Magna Carta and Minorities,” is also in the issue.

The ABA?web site has many resources, including events, links, Law Day theme details and information on a Magna Carta exhibit, sponsored by the American Bar Association and the Law Library of Congress. The traveling exhibit features a series of banners that tell the story of the historic document and its impact on the rule of law. The exhibit is being displayed at law schools, courthouses, bar centers, law libraries and other venues around the U.S.



John’s heirs were held to it. As Sir Edward Coke told Parliament in 1628: “Magna Carta is such a fellow that he will have no sovereign.”[13] And demonstrating the law’s supremacy, by 1649 a king was executed for violating this principle. Yet in keeping with our cynical age, some historians discount the document as only an affirmation of feudal obligations and a temporary truce. They assert that subsequent generations have poured their own agendas into it. But a reading of the charter itself and a survey of history prove them very wrong.

In the beginning, the rebellion of 1215 can be seen as just an effort to preserve preexisting rights of Englishmen, in the same way the American Revolution would later commence, but, like the American Revolution, events snowballed. And Magna Carta grew in importance as successive layers of democracy were erected on it. The barons themselves also proved that the revisionists are wrong. Reflecting the significance of the charter in their time, we need only consult the words one of them had emblazoned across his own sarcophagus: “Magna Carta est lex. Deinde caveat rex” (Magna Carta is the law. The king better beware).[14]

Although the barons of Runnymede are long dead, we, the bar, are their inheritors. We are the enforcers, as were the lawyers who went before us over the last 800 years.

Notes

  1. John W. Davis, Address, New York, 16 Mar. 1946, in Record of the Association of the Bar of the City of New York 101, 102 (1946).
  2. See, e.g. Russell Fowler, “Magna Carta and King John,” Encyclopedia of World History (2008).
  3. Tenn. Const. art. I § 8.
  4. Tenn. Const. art. I, § 17.
  5. Magna Carta (1215), art. 39.
  6. See, e.g. Russell Fowler, “Courts,” Grolier Encyclopedia of the Victorian Era (2004).
  7. Charles Rembar, The Law of the Land 131 (1980).
  8. Magna Carta (1215), art. 63.
  9. Magna Carta (1215), art. 40.
  10. Magna Carta (1215), art. 61.
  11. Papal Bull of August 24, 1215.
  12. Magna Carta (1215), art. 63.
  13. Sir Edward Coke (1552-1634), House of Commons, 17 May 1628.
  14. The tomb of Gilbert de Clare in the Abbey Church of Tewksbury.

Russell Fowler RUSSELL FOWLER is associate director of Legal Aid of East Tennessee (LAET) and since 1999 has been adjunct professor of political science at the University of Tennessee at Chattanooga. He served as the law clerk to Chancellor C. Neal Small in Memphis and earned his law degree at the University of Memphis in 1987. Fowler has more than 50 publications on law and legal history, including several in this Journal.