The VBA Journal is the official publication of The Virginia Bar Association.
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WINTER 2014 - 2015 • 21 WINTER 2014 - 2015 • 21 I n June 1215, England's barons forced a reluctant King John to agree to the terms of Magna Carta. Te Char- ter's provisions were directed at issues of that day and time, and many of them have little more than antiquarian interest today. Yet, over the centuries, Magna Carta came to be a symbol of opposition to arbitrary rule, an exemplar of the very notion of the rule of law. In 17th century England, leaders in Parliament invoked the Charter in opposing the overreaching pretensions of the Stuart monarchs. Magna Carta's infuence was not limited to the coun- try of its birth. Te Charter and its principles, including the glosses placed upon it by centuries of usage, have pro- foundly shaped American constitutionalism. Magna Carta's legacy in America is intertwined with the history of events in Virginia. Magna Carta Comes to America Te Virginia Company Charter of 1606 does not refer explicitly to Magna Carta. But the colony's founding docu- ment declared that the colonists and their posterity were to have and enjoy "all liberties, franchises and immunities" to the same extent "as if they had been abiding and borne" in England. In other words, by immigrating to Virginia, the colonists did not leave their rights behind. Tey could as- sume they carried with them the protections they would be aforded by the customs and conventions associated with the common law, including the traditions fowing from Magna Carta. Having come from England, the early settlers naturally looked to the mother country in enacting their own laws. In 1619, Virginia's governor, Sir George Yeardley, convened a general assembly to participate in the colony's governance – the frst representative legislative assembly in the New World. Soon thereafter, in 1631, the governor and council, together with the general assembly, instructed commission- ers in the colony's courts to do justice "as neere as may be after the laws of the realm of England." Te oath taken by the commissioners required them to "do equall right, to the poore and to the rich" – language recalling Magna Carta's chapter 40, "To no one will We sell, to none will We deny or delay, right or justice." Lawbooks and Coke's Teachings Lawbooks became a prominent feature of Virginians' li- braries. Robert Carter, often called "King" Carter, assembled what has been called "the best law library in the American colonies at that time." A study of about 100 private libraries in colonial Virginia found the most common law title in those libraries was Sir Edward Coke's Reports. Terein lay a direct connection to Magna Carta. Coke was a leader in parliamentary challenges to Charles I's resort to forced loans and arbitrary imprisonment. Coke declared, "Magna Carta is such a Fellow, he will have no Sovereign." Coke was also the greatest commentator of his day on the laws of England. Te infuence of his Second Institute and his Reports in the American colonies was immense. Sig- nifcantly, when he was a judge, Coke decided Dr. Bonham's Case (1610), declaring that the "common law will controul Acts of Parliament, and sometimes adjudge them to be ut- terly void … ." Although parliamentary supremacy became (and remains) the governing principle in England, Coke's pronouncement helped shape later American views on fun- damental law, especially Magna Carta, as a check on legisla- tive authority. The Road to Revolution Te Seven Years' War (1756-63) changed the course of history, not only in Europe, but also in America. Great Brit- ain had won great victories, but it paid a heavy fnancial price. Having spent vast sums to secure the frontiers of the American colonies, the government in London looked to the colonists to pay part of the bill. In 1765, Parliament enacted the Stamp Act – the frst direct, internal tax levied on the American colonies. Te colonists were outraged. Vir- ginia's legislature declared that the colony's original settlers brought with them and passed along to their posterity the BY A.E. DICK HOWARD A.E. Dick Howard is the White Burkett Miller Professor of Law and Public Afairs at the University of Virginia. He is the author of "Te Road from Runnymede: Magna Carta and Constitutionalism in America." In June, to mark Magna Carta's 800th anniversary, he will give lectures in England under the auspices of the American Embassy, the British Library, Oxford's Bodleian Library and Salisbury Cathedral.