Welcome to The Artful Dilettante–a sanctuary of reason and virtue, where reality is your best friend and facts always trump wishful thinking. It is the Lamp of Hope in a dark and musty corner of a crumbling civilization. It is the seedbed of the Republic of Letters and Virtue coming soon to a world near you. It is a place of free minds, free wills, and free markets–without chains, yokes, or harnesses. The Artful Dilettante is on the front lines of the Liberty Movement. It is intended for people who think rationally as a way of life. There is no place here for the false dichotomies of left and right, haves and have-nots, liberals and conservatives. History is and has always been about the struggle between liberty and power. The stale bromides and recycled political pablum advanced as solutions by our benighted leadership will find no support here. Great moral problems cannot be solved by sleights-of-hand. The true sign of a good idea is the wailing and gnashing of teeth by the ruling class. We are ever on the lookout for bold and sweeping ideas, firmly grounded in liberty, which will send the political class into fits of rage.
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The Artful Dilettante
A Legend in His Own Mind.
Ama-gi: first known recorded symbol of “liberty” in Sumerian cuneiform
In 1984, Ross Perot purchased a copy of the 1297 reissuance of the Magna Carta from the Brudenell family who had held the document for centuries. In 1988, it became a permanent fixture of the National Archives Museum where it stayed in the rotunda along with the American charters of freedom for several years. Nearly two decades later, in 2007, Perot sold the copy for twenty-one million dollars to David Rubenstein who also placed it again on long-term loan at the Archives as well as giving a generous donation for renovations to the rotunda. The Archives re-encased the charter and placed in a new exhibit in 2010. The 2500-word Latin document is a remarkable sight. In many ways it is in better condition on vellum than the parchment copies of the Declaration of Independence and United States Constitution.
The Magna Carta, and how the American founders viewed it, is fundamental to any Whig interpretation of the period. While economic interpretations are valid, it would be wrong to dismiss the founders’ vision of the Magna Carta as a foundational text and patrimony, and its power in propaganda and legal argumentation. For patriot or loyalist, the Magna Carta took on a covenantal role to which all else was subordinate.
Nevertheless, the centuries-long history of the document before the Revolutionary War complicates the history for those in the present. It is difficult to draw a very straight of a line from 1215 to 1776 without losing focus and winding up in a thicket of legalese or mentioning every single colonial and founding figure who even once mentioned the charter in speech or letter. Yet despite unforgiving contemporary views of the charter’s significance, and those in the Revolutionary period who saw it as a wellspring of everything it meant to be of English descent, we can see that the path may be quite tortuous but one can look backward from 1776 and see a clear beginning in the distant past.
Histories of what occurred at Runnymede in 1215 can begin as early as the 900s with others starting after the Norman Conquest of 1066 under William I (the Conqueror). This was the ascent of the Norman and Angevin Kings in England. William the Conqueror’s second son, Robert, was rightful heir to the throne because his older brother, William II, had died in 1100. Younger brother Henry, however, swiftly united the barons behind him and assumed the throne. This was accomplished with some conditions from the barons, which Henry outlined in a bilingual Charter of Liberties. Such promises were not unknown before this, but Henry’s was the first of such great length. His charter was reaffirmed by his successors not only as originating with Henry but as a continuation of the rights and liberties of the English since before the Norman Conquest.
Henry made his promises to the Church first but then promised to ease the reliefs paid by the baronage that were required to “buy” back the lands they had inherited. He remitted debts owed to his predecessor and restored the “Law of King Edward.” Two generations later, in 1199, Henry II’s youngest son—the infamous King John—rose to the throne. This was not an expected outcome throughout most of John’s life. John spent much of his kingship at war with regions of France. War was costly and, as the story goes, John’s barons had little patience with his fiscal policies to fund these massive campaigns. A new agreement was reached at Runnymede in 1215, called the Runnymede Charter for decades before the term Magna Carta became the standard.
Stephen Langton, then Archbishop of Canterbury, has long been considered the primary author of the charter, although it is unclear which provisions are his and which are not. Langton had the background to have crafted such a text. His education was primarily French and heavily influenced by his colleague Pierre Chanter or, Anglicized, Peter Cantor. Both held that monarchy was an element of Original Sin and, while there were duties one owed to a monarch in the temporal realm, there were limits on what a monarch could exact from his subjects. Langton conditioned this obedience on a technicality: whether or not judges had ruled the king’s actions to be just. Disobedience was not permitted if there was an affirming judgment. If, on the other hand, the king acted in his own will, that was another matter.
These types of debates, including the boundaries between ecclesial and political authorities, were commonplace in the academic world in medieval Paris. During the generation before Runnymede, English legal theory was dominated by the likes of John of Salisbury who was of Anglo-Saxon descent but educated, like Langton, in Paris under Abelard and who was a friend of the first and only English Pope, Adrian IV. In his Policraticus, Salisbury affirmed that kings were bound by the law and advanced his own somewhat unique solution of regicide in addition to mere disobedience. Lawful kingship, however, was not a novel point of view during this period but a fairly commonplace one; the Magna Carta, far from being a watershed, reflected ideas that had already been long in place by 1215. In 1291, Edward I declared the charter to have statutory force and it continued to do so for centuries.
1300-1600: An Interlude
The long-established narrative has been that the Magna Carta vanished from the English imagination from the fourteenth to the seventeenth centuries. Although many of the articles declined in relevance as laws changed during these three “dark” centuries, a seventeenth century writer asserted that the Magna Carta’s mind was great even if the body was small. Recent research on court documents of this era, long obscured by the archaic and inconsistent language they used, shows that many of these cases did cite the Magna Carta in some form or another. More formal treatises appear in the sixteenth century as well.
This dispels the notion that the charter grew irrelevant during the Late Middle Ages and disrupts another prevalent narrative, that Edward Coke democratized the meaning of the Magna Carta beyond what it could have possibly meant in its time. It is now evident that the charter’s villiens tenementum, those subject to a feudal lord, were partially included in the chapters concerning free men. To be fair, there was probably little recourse that a peasant would have against his lord. However, it did not necessarily imply a lack of parity when acting outside the geographic bounds of his feudal domain. Rights were certainly limited, weighed against one’s lord, but peasants nonetheless had rights under medieval readings of the Magna Carta particularly following the vast societal changes brought about by the Bubonic Plague of the fourteenth century. When writing about the Magna Carta’s immemorial influence, recent discoveries have been a huge boon to those who look to the charter for its influence on American law and the founders’ understandings of rights.
Stephen Langton, speaking for the barons, had attributed these rights to a very likely source: God. The barons, however, probably had a more terrestrial origin in mind: immemorial custom.
Indeed, if there is a word which could contextualize the sentiments about English law during this period, particularly as it applied to the rights of individuals, the best choice would be immemoriality. A word to describe something that exists beyond memory. The Magna Carta had not been “forgotten” in the fifteenth and sixteenth centuries. However, a “revival” of its origin and meaning, especially of the twenty-ninth article, came during the seventeenth century. Its primary expositor, Edward Coke, is likely recognizable to most readers of American constitutional history. Its primary exporter was another name even more familiar to students of American history: William Penn. Penn, like Coke, would primarily concern himself with Article 29.
In terms of immemoriality, Coke connected the Magna Carta to twelfth century origins, namely the coronation texts of Kings Henry I, II, and III. From there, Coke and his successors extended this law to Edward the Confessor, the last of the Anglo-Saxon Kings of the early eleventh century. An example of Coke’s rendering of the Magna Carta, and one that would prove very important for his American acolytes in the next century, was the writ of Habeas Corpus. The notion itself predated the Magna Carta by nearly a half-century under Henry II. The modern concept of Habeas Corpus is not clearly connected with the Magna Carta, rather, Habeas corpus ad subjiciendum had been a royal prerogative to have a prisoner called to the King’s court. While Article 29 established that freemen cannot be imprisoned or dispossessed without some sort of due process, Article 28 of the Magna Carta established that no one (aliquem), not merely freemen (liber homo), could be charged without reliable witnesses presented in front of some sort of tribunal. From this, Coke extrapolated what many would consider a more contemporary notion of habeas corpus.
Parliament passed the Habeas Corpus Act forty-five years after Coke’s death in 1679 during Charles’s reign. This was not understood as creating habeas corpus but, rather, strengthening it to prevent any arbitrary or capricious behavior from Charles’s likely successor, his brother James. The act passed in a humorous back-and-forth between the Lords and Commons and Charles gave his assent.
During the Stuart restoration in Britain, King Charles II and James were typically supportive of religious toleration. Unfortunately, the Parliament of the time did not share this sentiment and William Penn, as the story goes, found himself so at odds with supporters of the Church of England that he eventually fled to North America. With this background, Penn printed the Magna Carta in the North American colonies, expounding on the natural rights of Englishmen with particular reverence toward the ninth and twenty-ninth articles.
Most of Penn’s commentary on the Magna Carta centered on the rights that it granted to all Englishmen. His introduction smacks of a warning and a call for all of the colonies, not just Pennsylvania, to pass resolutions affirming the rights of men, more akin to a call for a bill of rights than a constitution. With one exception in Maryland in the 1640s, key government documents like the Fundamental Orders of Connecticut (1639) were simply about governance and not about rights.
Marylanders had a stronger record of attempting to delineate their rights as Englishmen in addition to the marginally effective 1639 Petition of Right. The settlers asserted “the Inhabitants of this Province shall have all their rights and liberties according to the Great Charter of England.” In a 1728 pamphlet, Daniel Dulany the elder re-asserted that these rights had their origin not only in the Magna Carta but also in other acts including the Bill of Rights of 1689 and the aforementioned Habeas Corpus Act of 1679. His son, Daniel Dulany the younger, though a loyalist, would nevertheless argue in a similar vein concerning taxation without representation decades later.
In same decade as Penn’s printing, comity between the colonial governments and the British Crown withered. Colonists had wearied not only of King James II’s pro-Catholic power plays, but also of his royal governors in the colonies. Moreover, James used royal prerogative to dump the colonial charters that provided the later foundation for the patriot’s argument that the North American colonists maintained the same rights of mainland Britains. The result, while not on the scale of war, did involve rebellion in a few of the colonies: Leisler’s Rebellion (New York), Gove’s Rebellion (New Hampshire), and the Boston Revolt of 1689.
Great Britain faced a two-front upheaval from the Dutch Low Countries against the Stuart Dynasty as well as discontent and revolt from its own North American colonies who were already rebelling to assert their rights nearly a century before the American Revolution. The Glorious Revolution of 1688 upended the Stuart Dynasty and began the rule of the House of Hanover under the William of Orange, a Dutch prince and stadtholder, and his first cousin Mary II.
Americans and the Rights of Englishmen
The Founders’ view of the Magna Carta was largely based on such idealism of English law and identity. Far from its origins as a baronial document, the Magna Carta had its own mythos by the 1700s. In this high-minded idealism, the charter represented the rights of all Englishmen rather than just the peerage. As a legal matter the charter’s relevance was far less clear.
Colonial grievances were against the policies of Parliament, not the monarchy, and rebelling against the British monarchy was not a focal point of protests before 1776. If anything, during the protests against Parliament, colonial political leaders remained deferent to the King. Historian Eric Nellis questioned the sincerity of the Olive Branch Petition in his book The Long Road to Change because it asserted allegiance to the King while rejecting Parliament’s authority in the colonies. However, its sincerity and logic is not as incoherent as it seems when taking into account the legal arguments of the 1760s and the appeals to the Magna Carta above any other major text of English history. Having resorted to outright rebellion in 1776, the complaints of the Declaration of Independence could be addressed directly to the King. In fact, at that point, the Declaration seems to go out of its way to avoid acknowledging that Parliament owned any of the abuses cited therein.
In 1764 Parliament passed the Sugar Act to resolve the longstanding issue with American merchants evading import duties on molasses. While in the short run the act had some unpopularity with merchants, it failed to excite anti-parliamentary passions. The Stamp Act of 1765 was another matter: it was a new revenue tax that affected almost everyone. Here began the decade of discontent leading to secession.
The Glorious Revolution of 1688 had established greater parliamentary supremacy. This was a supremacy that would naturally have extended to the British colonies. While that revolution lessened the power of the British monarch to act in the absence of a convened parliament, and gave rise to the English Bill of Rights, it still occurred during a period of greater centralization of power throughout Europe. The absorption of Scotland into Great Britain under a single crown and parliament in the 1707 Act of Union was a natural consequence of this. Caution was taken in later colonial charters not to be as generous as in those granted in the earlier seventeenth century. Georgia, for example, entitled its colonists to the rights of Englishmen but no right of local governance.
These matters came to a head during the Stamp Act Crisis in 1765. This was when the legal aspects of the charter came into question. Benjamin Franklin traveled to London to represent the colonies. Other recorded testimony came from Isaac Barre, an Irish soldier and member of Parliament supportive of the Americans, and Joseph Galloway, a lawyer and friend of Franklin’s yet nevertheless an ardent loyalist pledged to defend the mother country.
Most of Franklin’s associates agreed with Barre. Franklin combined his associates’ Declaration of Rights and Grievances, undoubtedly written by John Dickinson, along with other municipal declarations to the House of Commons. In the course of questioning, the Magna Carta appears to have come up in a flurry of confusion between Franklin and the Prime Minister, Lord Grenville. The back-and-forth between Grenville and Franklin tested Franklin’s patience and, as the ministers persisted in their interrogation, Franklin grew weary and testy.
Q. Don’t you know there is, in the Pennsylvania Charter, an express reservation of the right of Parliament to Lay Taxes there?
A. I know there is a clause in the charter, by which the King grants that he will levy no taxes on the inhabitants, unless it be with the consent of the assembly, or by act of parliament.
Q. How then could the assembly of Pennsylvania assert, that laying a tax on them by the Stamp Act was an infringement of their rights?
A. They understand it thus; by the same charter, and otherwise, they are intitled to all the privileges and liberties of Englishmen; they find in the great charters, and the petition and declaration of rights that one of the privileges of English subjects is, that they are not to be taxed but by their common consent. . . .
Q. Are there any words in the charter that justify that construction?
A. The common rights of Englishmen, as declared by the Magna Charta, and the petition of right, all justify it.
While it had been a pretty standard argument to invoke the older colonial charters, Grenville stood on firmer ground than Franklin here. The Pennsylvania Charter, ironically William Penn’s own Frame of Government, stipulated exactly what Grenville had spoken. Franklin’s rebuttal hyperextended a six hundred year old document that bore little relevance to the matter at hand.
Notions of “inherited rights” get bandied about loosely in contemporary discourse but it is essential to understand how strong notions of “Englishness” existed for nearly a millennium before the American Revolution. Saint Bede the Venerable wrote a well-known history of England in the seventh century that formed the basis of an English identity apart from the fragmented continent in the post-Western Roman Empire realms. Englishness, and later Britishness, was extended generationally and, as far as the colonists were concerned, across all distances. In London, Edmund Burke made the same case for the colonists although he, like Joseph Galloway, would never claim colonial legislative supremacy over the Parliament.
Many British politicians, as well as many notable Americans, disagreed. Distance was a cause for differential treatment. Thomas Hutchinson was among the Americans who agreed that the colonies were not necessarily part of the British community insofar as rights were concerned. Here it is important to recall an important point in the chronology of the debates over “taxation without representation:” several colonies argued for their right for their representatives to tax themselves. That would put colonial legislative bodies on par with the British Parliament. If that seems like an unpalatable notion, also bear in mind that the Glorious Revolution was as close to their national memory as World War II is to ours. And from the ashes of the Glorious Revolution was the final subordination of the crown to the prerogatives of Parliament in most matters. One must keep this in mind when understanding the opprobrium of Parliament and American Tories. In sum: claiming rights of all post-1688 Britain while claiming further rights to autonomy from an inheritance from the 1215 charter frankly seemed absurd.
In 1776, in the spring preceding the Declaration of Independence, Chief Justice William Henry Drayton of South Carolina delivered a riveting address to a grand jury in Charleston. Drayton invoked the Magna Carta as a foundational document of justice in the English colonies and charged that George III’s government had treated it with contempt. In this decade after the taxation crises, Parliament was no longer the main enemy and charges were increasingly made against the King signifying not only the offenses against the Americans—which Drayton and many others outlined—but the state of rebellion for which Englishness was no longer a sufficient bond to prevent. Drayton drew on numerous historical precedents including South Carolina’s shedding of proprietary rule in a bloodless revolution in 1719.
While drawing parallels with King John would have been insult enough, Drayton took the approach of comparing George III to the final Stuart monarch, James II, who had been ousted during the 1688 Glorious Revolution. It was in these later years before 1776 that the colonial charters—which had been tampered with also under James II—were dissolved by George III. Other states, including New York, had their legislatures suspended. James II had broken the original contract between the Crown and Englishmen, and now George III had done so with the colonies; the response would be no different.
While Drayton still paid some lip service to reconciliation, David Ramsay avoided any pretense in his July 4, 1778 address, also in Charleston. The language was extravagant and optimistic despite the state of war. In Ramsay’s address one can see the beginnings of an “American Dream” in which even the lowest-born could succeed. “Whereas, in our present happy system, the poorest school-boy may prosecute his studies with increasing ardour, from the prospect, that in a few years he may, by his improved abilities, direct the determinations of public bodies, on subjects of the most stupendous consequence.” Ramsay’s speech clearly wanted to boast of America’s own glorious revolution. Naturally, it may be pointing out the obvious that the Siege of Charleston was still two years in the future from Ramsay’s grandiloquent speech.
It is on this point we can return to 1776 when the Olive Branch Petition and other documents for reconciliation were addressed to George III. Thomas Jefferson and John Adams appealed to the rights that they believed extended from the pre-1688 Britain and tethered their loyalty to the King rather than to Parliament. However, taxation alone did not propel the colonists to outright rebellion. Rhode Island formally declared independence a month before the signing of the Declaration in 1776, citing the lack of trial by jury and habeas corpus. Harkening back to the Magna Carta: the fight was to remain free, not to become free.
But where the Declaration of Independence reflected ire over suspension of colonial charters and legislatures, and the Constitution’s more immediate focuses were of habeas corpus and due process, the Bill of Rights owed a massive debt not only to the English Bill of Rights but to the very wording of the Magna Carta:
Fifth Amendment: “No person shall be held to answer for a capital or otherwise infamous crime . . . nor to be deprived of life, liberty, or property without due process of law. . .”
Chapter Twenty-Nine: No freeman shall be taken, imprisoned, or disseized . . . or in any way destroyed, nor will we . . . prosecute him, except . . . by the law of the land.”
Fifth Amendment: “nor shall private property be taken for public use, without just compensation.”
Chapter Nineteen: “No constable or other bailiff of ours shall take anyone’s grain or other chattels . . . without immediately paying for them in money”
Sixth Amendment: “In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed”
Chapter Fourteen: “A freeman shall not be [prosecuted] . . . except by the oaths of lawful men of the neighborhood”
During the eight-hundredth-anniversary of the Magna Carta in 2015, British jurist and medieval historian Jonathan Sumption—Lord Sumption—took on legal and historical interpretations of the charters. “Its practitioners have a natural tendency to legitimise their ideals by asserting their antiquity. But they have, on the whole, been bad historians.” Sumption assailed Coke and the exceptionalist mythos that persisted until the early twentieth century. “But I do have a problem with the distortion of history to serve an essentially modern political agenda. Claims like those which I have just cited are high-minded tosh.” There is little to nothing wrong to be found in Lord Sumption’s analysis. However, even if much of the tradition that the Founders saw was a cooked-up historical fiction it would be foolish to deny the power of the idea and how it came to shape the political thinking of the period. In that sense, the Magna Carta’s placement with the charters of freedom is reasonable even if the ultimate, parallel truth is much more complicated. However, there is some reason to believe that it is uncomplicated. The recently-translated court documents from the fourteenth and fifteenth centuries cast doubt on the idea that Coke’s—and the American Founders’ —views of the Magna Carta and the rights of Englishmen were mythical. Exaggerated, perhaps, but far from baseless. As Justice Felix Frankfurter put it in 1953, the Magna Carta “was the beginning, not the end, of the struggle for the principles it enunciated.”
A personal account of the auction can be found at David Rubenstein, “The Magna Carta Returns to the Archives,” Prologue Magazine 42, no. 4 (Winter 2010).
Charter of Liberties of King Henry I, A.D. 1100.
John of Salisbury, “The Statesman’s Book” (Policraticus in the original Latin), in Great Political Thinkers, 3rd edition, ed. William Ebenstein (New York: Holt, Rinehart and Winston, 1964), 187-209.
John W. Baldwin, “Master Stephen Langton, Future Archbishop of Canterbury: The Paris Schools and Magna Carta,” The English Historical Review 123, no. 503 (2008): 811-846. See also Lord Sumption, “The Magna Carta Then and Now,” an address to the Friends of the British Library, March 9, 2015.
Richard H. Helmholz, “The Myth of Magna Carta Revisited,” North Carolina Law Review, 94, (2015): 1475-92.
Some peasants were willing to claim the rights of the charter against their lords. See John F. Nichols, “An Early Fourteenth Century Petition from the Tenants of Bocking to Their Manorial Lord,”Economic History Review 2, no. 2 (January 1930), 300-7.
Sumption, “The Magna Carta Then and Now.”
George Garnett, “Sir Edward Coke’s Resurrection of the Magna Carta,” in Magna Carta: History, Context and Influence (London: School of Advanced Study, University of London, Institute of Historical Research, 2018), 51-60.
A terrific account is available in J. Enoch Powell, Great Parliamentary Occasions (London: Queen Anne Press, 1966), 65.
From the text of the 1297 charter, Article 28: Nullus ballivus ponat decetero aliquem ad legem manifestam vel ad juramentum simplici loquela sua, sine testibus fidelibus ad hoc inductis, “No bailiff is henceforth to put any man on his open law or on oath simply by virtue of his spoken word without reliable witnesses produced for the same.” Article 29: Nullus liber homo decetero capiatur vel imprisonetur aut disseisiatur de aliquo libero tenemento suo vel libertatibus vel liberis consuetudinibus suis, aut utlagetur, “No freeman is to be taken or imprisoned or disseised of his free tenement or of his liberties or free customs.”
The two most commonly cited authors for those who oppose this reading are Edward Jenks who wrote his “Myth of the Magna Carta” in 1904 and William McKechnie whose own commentaries were published a decade later. Jenks declared false any claim that the document could apply to anyone outside of freemen who made up about one-sixth of the population. However, Richard Helmholz pointed out that much of the criticism of the Magna Carta rests on anachronistic assumptions about law and, although he doesn’t use the word himself, a progressive view of English law’s formation must be borne in mind to put it in its proper context. Helmholz, “The Myth of Magna Carta Revisited.”
The ninth article forbade land seizure for the payment of debt if there was sufficient money or property, or a willing surety, to cover the debt.
Charles A. Rees, “Remarkable Evolution: The Early Constitutional History of Maryland,” Baltimore Law Review 36, no. 2 (2007), 217-70. Dulany the Elder’s Pamphlet The Right of the Inhabitants of Maryland to the Benefit of English Laws is difficult to locate but is reprinted in St. George Leaking Sioussat’s “The English Statutes in Maryland,” Johns Hopkins University Studies in Historical & Political Science (1903), 81-104. Dulany the Younger’s pamphlet “Considerations on the Propriety of Imposing Taxes in the British Colonies, for the Purpose of rasing a Revenue, by Act of Parliament” was better known because of the revolutionary context in which it was written. An excerpt is available at www.let.rug.nl/usa/documents/1751-1775/daniel-dulany-considerations-october-1765.php.
For an easy-to-read transcription of the Olive Branch Petition see Steven Thomas, “The Olive Branch Petition,” America’s Homepage (Georgia Tech), January 2009, ahp.gatech.edu/olive_branch_1775.html.
Eric Nellis, The Long Road to Change: America’s Revolution, 1750-1820 (Toronto: University of Toronto Press, 2007).
“Judge Drayton’s Address to the Grand Jury at Charlestown, South Carolina,” April 23, 1776, digital.lib.niu.edu/islandora/object/niu-amarch%3A92538. Thomas Paine probably took the most radical approach of all: that the rights of all human beings derived not from statute but through their humanity. His notion of rights nearly had the same divine origination as Langton’s. Paine went to great lengths in the early chapters of the first part of Rights of Manto dispose of any attempt to tie American rights to English rights via statute. Paine took Edmund Burke to task throughout the entire volume but never appeared to direct his ire toward Americans who espoused the statutory view.