June 15, 2015:- “Forget not after all these years the Charter signed at Runnymede,” as Rudyard Kipling urged in his epopee to Magna Carta, the document to which King John affixed his seal 800 years ago today. Among the reasons for forgetting not Magna Carta after all these years — and for wishing it a happy birthday — is the provision that underpins our modern notion of due process:
No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his peers or by the law of the land.
The observance of due process sends a strong signal that a society rests on the rule of law. Conversely, the absence of due process is compelling evidence of a society living under tyranny. So this notion, first announced in Magna Carta, still matters, as does another principle that had its roots in Magna Carta, that only the legislature — not the executive — may levy taxes.
Some 440 years after its adoption, in the period that followed the English Civil War, a merchant by the name of George Cony relied on this principle when he got his tax bill. After Oliver Cromwell had persuaded Parliament to enact the Instrument of Government, a written constitution that made him Lord Protector, Cromwell and his Council set about collecting customs duties. Article 27 of the Instrument of Government expressly allowed the Protector and Council to do so. George Cony refused to pay customs duty on the grounds that the Cromwell and his Council had imposed the tax without the consent of Parliament. Although the Instrument of Government might permit them to do so, Magna Carta did not, in Cony’s opinion.
Cromwell did not think much of Cony’s constitutional contention and threw him in jail. When Cony’s three attorneys appeared before the Council to argue for his release, Cromwell threw them in jail as well. For an account of Cony’s case I am indebted to Stephen F. Black’s 1976 article about the judiciary under Cromwell.* According to Mr. Black, what seemed to really nettle Cromwell was the lawyers’ bringing up Magna Carta.
Cromwell, irked, referred to Magna Carta as “Magna Farta,” evidence that the notoriously dour Protector had a schoolboyish sense of humor (so I suspect that in his days as a cavalry general he would probably have yearned for this talented horse under his saddle). Cromwell told Cony’s lawyers that if “they would have Magna Farta, they must put on a helmet and troope [i.e. march] for it.” So off to the Tower the barristers marched, nudged along by big men bearing swords and pikes, and remained there for about a fortnight. But, as Mr. Black explained, “Cromwell quickly recognized the danger of alienating the entire legal profession by incarcerating three of its leading members solely for their impassioned advocacy of a client’s cause.” So out of the Tower they trudged, thanks to political calculation trumping protectoral pique rather than to any observance of due process. And after two weeks in confinement staring at the 15-feet thick walls, they might not have concurred with Mr. Black’s choice of the adverb “quickly.”
Perhaps Cony hoped that his freshly-sprung attorneys would persuade an appellate court to order his release. But Cromwell’s next step made that outcome extremely unlikely, to put it mildly. To the old adage “if you can’t argue the facts argue the law, and if you can’t argue the law argue the facts,” Cromwell added “and if you can’t argue either, pack the court.” He replaced the awkwardly scrupulous chief justice, Henry Rolle, with John Glynne, a judge who had learned the possible advantages of becoming a pliant ally of the new regime during his own stint in the Tower. Glynne’s appointment seems to have prompted Cony to realize that any appeal would be futile. He could remain in jail indefinitely, a martyr for the cause of an important constitutional principle, or he could pay up and go home. Cony chose the second option, and who can blame him.
Today, on the 800th anniversary of Magna Carta, what can we learn from George Cony’s 360-year old case? One significant lesson, I believe. Without an independent judiciary and the rule of law, liberty withers. The trappings of legality that decorated Cromwell’s regime made no difference to George Cony and his lawyers when they had the gall to remind the Lord Protector what it was that he was supposed to be protecting, namely liberty under law. Before and during the Civil War, Cromwell and his fellow parliamentarians made much of the King’s derogations from Magna Carta, but when he became king in all but name Cromwell himself ignored one of Magna Carta’s most important provisions: due process. Although the Instrument of Government with its apparent checks and balances supposedly constrained Cromwell, his power to tax without the consent of the legislature left the liberties of the people as brittle as the parchment of Magna Carta.
* Black, S. “Coram Protectore: The Judges of Westminster Hall under the Protectorate of Oliver Cromwell,” American Journal of Legal History 20(1) pp. 32-64.