Magna Carta, and Other Addresses

by William D. Guthrie

The idea that the fundamental laws of the land—the pious and good old laws of Alfred and of Edward, as the English called them, or les lois fondamentales, as the French were then calling them—were unalterable and that any governmental regulation, or edict, or statute to the contrary should be treated as void and null, is plainly enunciated in the first chapter of Magna Carta, where King John grants to the freemen of the kingdom "all the underwritten liberties, to be had and held by them and their heirs, of us and our heirs forever," and in chapter sixty-one, where the king covenants that he "shall procure nothing from any one, directly or indirectly, whereby any part of these concessions and liberties might be revoked or diminished; and if any such thing has been procured, let it be void and null." It is certain that during the thirteenth and fourteenth centuries the theory generally prevailed in England that the concessions and liberties of the Great Charter had been granted forever and were unalterable by the king, or even by parliament. Thus, we find parliament enacting in 1369, with the consent of Edward III., that the Great Charter of Liberties should be "holden and kept in all points, and if any statute be made to the contrary, that shall be holden for none."

One of the scholarly critics of Magna Carta suggests that this enactment of 1369 was quite an "illogical theory" on the part of parliament, because, to quote his language, "if parliament had power to alter the sacred terms of Magna Carta, it had power to alter the less sacred statute of 1369 which declared it unalterable."[3] The conclusive answer to this kind of reasoning, at least as it must seem to statesmen and lawyers, is that Magna Carta was then regarded as something very different from and much higher than any ordinary statute. The people of that day would have protested, if the logic of parliament had then been challenged by the learned, that Magna Carta was a permanent charter of liberties and as such not subject to amendment or nullification by mere statute. But logical or illogical as the act of 42 Edward III. may have been at the time, or may seem to be to the logicians of the twentieth century, it serves to show that in the fourteenth century the English people understood and intended, and the king and parliament expressly agreed and conceded, that the liberties guaranteed by the Great Charter, then being again and again confirmed, were unalterable, and that any statute to the contrary should be "holden for none."

The spirit of that declaration still lives in every American constitution. We certainly have here the antecedent of the great controlling principle underlying the whole structure of American constitutional law, that any statute in conflict with the fundamental laws, so far as we see fit to perpetuate them in constitutional provisions, shall be void and null, in the language of the Great Charter, or holden for none, in the language of the time of Edward III. Chief Justice Marshall in the great case of Marbury vs. Madison, in 1803, was but following these ancient declarations when, speaking for the Supreme Court of the United States, he settled—we hope for all time—the beneficent and indispensable doctrine that a statute contrary to an American constitution must be treated by the courts as void and null and holden for none.

I do not overlook the fact that this idea of fundamental laws unchangeable by statute long slumbered in England, and that the contrary—the legal supremacy of parliament—was subsequently established. In studying this aspect of the Great Charter, we must recall that the conditions of life in England during the thirteenth and fourteenth centuries were very much simpler than those existing later, and that it was not then realized, or at most only vaguely and dimly, that the legislative power could change the laws regulating the rights and duties of individuals as among themselves or in their relation to the government. The modern habit of imagining that in legislation is to be found the panacea for all ills and of measuring the efficiency of a government by the number of statutes it has produced was unthought of. Probably the only legislative function in the minds of Englishmen during the thirteenth and fourteenth centuries was taxation, and as yet men hardly realized the necessity for broader regulative or legislative powers.

Nevertheless, the doctrine that the permanent fundamental principles of the law of the land guaranteed by Magna Carta were inviolable prevailed in England long after the fourteenth century, and in fact was declared in the English courts as late as the seventeenth century. Bonham's case is the most familiar instance of the recognition of that doctrine. The views of English lawyers, judges and statesmen have changed in this respect, and it is now settled that parliament is supreme and that it can amend or repeal Magna Carta in any respect it may see fit. The changed view undoubtedly met with ready acquiescence, partly because of the necessity for amendments of the law in order to cope with changing conditions, partly because of the unwillingness of the English people to leave questions of constitutional power to the courts, in view of the dependence of the judges upon the crown, but principally because of the confident belief that parliament existed primarily for the very purpose of upholding and protecting the rights and liberties secured to the people by the Great Charter of Liberties, and that the people could rely upon parliament never to consent to the violation of those rights and liberties.

Repeatedly from the seventeenth century to our own day legislation has been criticized in Great Britain and Ireland on the ground that it was in conflict with Magna Carta, and always the strongest and most effective argument against proposed legislation has been that it would violate the principles of the Great Charter of Liberties. During the past thirty years thoughtful observers of English politics have remarked that private property in England is, on the whole, less secure from attack on the part of the government in our day than it was at the time of the Stuarts. Whenever the increase of class legislation and attacks on private property shall lead Englishmen to place checks and restraints upon the power of temporary majorities, so as more effectively to protect personal and property rights—an event which, I believe, must inevitably come to pass sooner or later—then the stirring battle-cry will again be Magna Carta, and the result may be a return to the spirit of the declarations of Magna Carta and of the statute of Edward III., that any statute contrary to the law of the land guaranteeing the fundamental rights and liberties of the individual shall be void and null and holden for none. And to make that ancient, sound and honest principle really an effective protection to the individual and to minorities, the courts of justice of England may at last be empowered, as they are with us, to refuse to give force and effect and to hold for none any statute in conflict with the fundamental law of the land.

Of an importance no less vital than the idea of a permanent law of the land safeguarding the fundamental rights and liberties of the individual, was the express declaration in the first chapter of Magna Carta that the English church, Anglicana ecclesia, should be free from interference on the part of the crown and that her rights should be entire and her liberties inviolable. In this provision we have the germ of an independent church and the idea of the separation of Church and State.

It is reasonable to assume and, in view of the surrounding circumstances and the language then employed, it is highly probable that, under the lead of Langton, who was born of English parents and intensely patriotic, probably himself the author of the clause, the churchmen of that day conceived that the religion of the English people ought to be free from governmental control, and that the English church had interests and privileges independent of the crown and independent likewise of the interests and policies of Rome. At that very time the English churchmen, in cooperating with the barons and people of England to secure Magna Carta, were acting against the will of Rome; indeed, as we know, the Pope promptly denounced the Great Charter and the patriot primate, because the Pope considered that the Great Charter was derogatory to the dignity of King John as a vassal of the Holy See. In this provision of Magna Carta relating to the English church, even though it was disregarded for centuries, we recognize the idea of religious liberty and the American political principle of the separation of Church and State, as also, though vaguely, the great principle underlying the noble declaration in our own state constitution that "the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state to all mankind."

The provisions of the Great Charter relating to the administration of justice were undoubtedly those which were of chief concern to the people at large, as they were certainly, if observed, those most essential for the security of their liberties. The framers knew that it was in the courts that the king of England would keep his promises, if at all, and that the king's government would only be as good as his judges were learned, independent and impartial. In these provisions of Magna Carta we find the principle of the separation and independence of the judicial power and the soundest and highest conceptions of the administration of justice, conceptions far in advance of those to be found in any other document or enactment of that age.