Today is the 806th anniversary of the day King John of England committed to undertake the reforms that were enumerated in Magna Carta. King John granted Magna Carta to his barons on June 15, 1215, in order to halt their rebellion and to regain their support for his leadership. While Magna Carta was a document of its time – most of the document dealt with making guarantees of special privileges to the major landowners of England – it became over the centuries a symbol of the rule of law among English speaking nations and throughout the world.
For Americans before the Revolutionary War, Magna Carta was associated with an idea of fundamental law, an idea that would later influence American constitutional notions of individual rights that the sovereign may not contravene and the doctrine of judicial review. This idea, they believed, emerged from an ancient constitution that English kings had recognized for all of English history, and that Magna Carta was created to acknowledge.
One American whose ideas about that ancient constitution helped to shape the course of the American movement toward independence was James Otis (1725-1783). Otis was a Massachusetts attorney and pamphleteer. His understanding of the rights of Englishmen, and in particular the rights that American colonists enjoined, was especially influential. He explained these right in his 1764 pamphlet “The Rights of the British Colonies Asserted and Proved.”
This short quotation will give you a sense of the tone of his argument:
Our rights as men and free born British subjects, give all the Colonists enough to make them very happy in comparison with the subjects of any other prince in the world. Every British subject born on the continent of America, or in any other of the British dominions, is by the law of God and nature, by the common law, and by act of parliament, (exclusive of all charters from the Crown) entitled to all the natural, essential, inherent and inseparable rights of our fellow subjects in Great Britain. Among those rights are the following, which it is humbly conceived no man or body of men, not excepting the parliament, justly equitably and consistently with their own rights and the constitution, can take away… (Otis, p. 35).
The rights that Otis goes on to list are freedoms in the general sense of freedom from illegitimate state actions: that legislative power is only valid for the community that the legislature legitimately represents – that is, subjects should remain free from arbitrary legislation; that state power should be exercised through known rules and without “ex tempore arbitrary decrees”; that judges should be independent of executive control; that the state may not deprive a subject of his property except by his consent or by the actions of a legislature that represents him; and that the legislature cannot transfer its power to another body. These statements became, in the following years, the basic premises of the colonial challenge to the UK Parliament‘s authority to levy internal taxes on Americans, such as the Stamp Act of 1765. Otis continued:
That the colonists, black and white, born here, are free born British subjects, and entitled to all the essential civil rights of such, is a truth not only manifest from the provincial charters, from the principles of the common law, and acts of parliament; but from the British constitution, which was reestablished at the revolution, with a professed design to lecture the liberties of all the subjects to all generations. (Otis, p. 37.)
Otis was remarkable in his day for his view that the races were equal from the point of view of their rights as British subjects. John Adams adopted Otis as a hero and mentor after witnessing his oration in Paxton v. Gray, a 1761 case before the Massachusetts superior court in which a group of Boston businessmen sought to challenge the legality of writs of assistance. (Writs of assistance were search warrants that gave customs officials permission to enter and search any premises for contraband; their use in pre-revolutionary America later motivated the United States’ adoption of the protections from illegal searches and seizures found in the Fourth Amendment to the Constitution.) Adams adopted much of Otis’ perspectives about the history of the English constitution and its meaning for colonial America. (McCullough, pp. 63-64.) But he stumbled on Otis’ position on race. Adams later wrote about Otis,
He asserted that these rights were inherent and inalienable. That they never could be surrendered or alienated but by idiots or madmen and all the acts of idiots and lunatics were void and not obligatory, by all the laws of God and man. Nor were the poor Negroes forgotten. Not a Quaker in Philadelphia or Mr. Jefferson in Virginia ever asserted the rights of Negroes in stronger terms. Young as I was and ignorant as I was, I shuddered at the doctrine he taught; and I have all my lifetime shuddered and still shudder, at that consequences that may be drawn from such premises. Shall we say, that the rights of servants and masters clash and can be decided only by force? I adore the idea of gradual abolitions! But who shall decide how fast or how slowly these abolitions shall be made? (Adams, v. 10, p. 179.)
While Adams never partook in slavery, he was not an abolitionist. He favored gradual abolition and opposed more radical positions of the question of freedom for enslaved Americans. Otis’ public influence was cut short in the years after the Stamp Act due to his deteriorating mental health as intermittent spells of delirium encumbered his professional activities. After a receiving a head injury in 1769 his periods of lucidity became infrequent, a condition which remained until his death in 1783.
Magna Carta was a symbol of the rights that Otis cited, and much more besides. Some readers will remember that the Library of Congress produced an exhibition on Magna Carta and the history of its interpretation in time for its 800th anniversary, celebrating the opportunity to host the Lincoln Cathedral Magna Carta, one of four remaining exemplifications of Magna Carta from 1215. The online version of the exhibition is still available and worth a visit.
Adams, John. The Works of John Adams, Second President, of the United States. Boston: Little, Brown and Company, 1851-1865.
McCullough, David. John Adams. New York: Simon and Schuster, c2001.
Otis, James. The rights of the British colonies asserted and proved. Boston, Printed and sold by Edes and Gill, 1764.
I remember visiting the Library’s exhibit of the Lincoln Cathedral Magna Carta six years ago. As an American lawyer I was in awe of the document. It felt very much like I was visiting a shrine and will never forget the experience. Thank you Library of Congress for helping to preserve this important symbol of the rule of law.
Timely reminder and elaboration. Thanks.