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Topic: The Magna Carta, 1215: and its

(B.A, LL.B (HONS)) 6th Semester

Damodaram Sanjivayya National Law University,, Sector-11 M.V.P Colony,
Visakhapatnam - 530017

List of Contents

Pg No-

1. Research Methodology


2. Chapterisation


3. Introduction


4. The Magna Carta


5. Socio-economic conditions of the American colonists in the eighteenth century


6. Reliance on the provisions of the Magna Carta in the American Revolution


7. Article 60 of the Magna Carta and its application to the American Revolution


8. Articles 12 and 14 of the Magna Carta and no taxation without representation


9. Articles 21 and 39 of the Magna Carta and trial by jury and rule of law


10. Articles 45 of the Magna Carta and the path towards self-government


11. Article 61 of the Magna Carta and the right to revolt


12.Place for the arguments based on Magna Carta in the American Revolution with the increasing
importance given to the Natural Rights theory


13. Women in and after the American Revolution


14. Slaves in and after the American Revolution


15. Liberties, the American Constitution and the Bill of Rights


16. Conclusion


17. Bibliography


Research Methodology
Aims and Objectives:
The object of this paper is to understand whether the reliance placed on the rights and
liberties granted in the Magna Carta by the American revolutionaries in the eighteenth
century is justified considering the difference in the context in which the document was first
drafted. The aim of this paper is to study the various provisions of the Magna Carta and the
possible links between them and the events of the American Revolution. Further, this paper
seeks to establish a link with respect to the outcome of the event at Runnymede in 1215 and
the American Revolution more than five centuries later with respect to the continuation of
marginalization of certain sections of society.

Scope and Limitations:

This Project has attempted to understand the justification of the American Revolution on the
basis of rights granted in the Magna Carta and therefore, has concentrated on the events
leading to the American Revolution rather than the events that form a part of the revolution
itself. This is because the change in the rights discourse and the shift to natural rights doctrine
was consolidated with the Declaration of Independence in 1776.
Research questions:

Can the conditions that prevailed in 1215 leading to the incident at Runnymede be
compared to the situation in the eighteenth century that finally culminated in the
American Revolution?

How did the British and the colonists differ in their perception of the role of the
colonies that eventually led to the American Revolution?

Which provisions of the Magna Carta did the revolutionaries rely on to justify their

Were the colonists justified in relying on the writings of Edward Coke and Blackstone
to justify their case?

Why did the rights discourse in the American Revolution shift to the natural rights

How did the American Revolution affect the rights and liberties of men and women
and to what extent did the Bill of Rights draw upon the Magna Carta to guarantee
individual liberties?

Method of writing:
The style of writing throughout this Project has been both descriptive and analytical.
Mode of citation:
An uniform mode of citation has been used throughout this project work.
Sources of data:
This Project is relied on both primary and secondary sources of data. The primary sources
include the documents relating to the American Revolution like the Declaration of
Independence and various pamphlets published at the time as well as the translated version of
the Magna Carta. The secondary sources include articles, books and websites.
Chapter 1: This chapter of the Project discusses the events that occurred in the late twelfth
century and in the first decade and half of the thirteenth century that led to what is sometimes
referred to as the tenant right movement that compelled King John to stamp his seal on the
Magna Carta. This section also analyses the nature of the Magna Carta as a feudal document
and the reasons for its importance for future generations that continues in the twenty-first
Chapter 2:

This chapter of the Project deals with the socio-economic situations that

prevailed in the American colonies from the beginning of the eighteenth century. This Project
work has discussed the shift in the attitude of the British with respect to the colonies with the
growing mercantilism in England and the responses that it evoked in the colonies. The
various laws enacted by the Parliament to tighten control over the colonies and the
consequent growing discontentment in the colonies because of the prevailing conditions have
been analysed as important pre-cursors to the American Revolution.
Chapter 3: This chapter of the Project studies the interpretations of the Magna Carta by
eminent jurists such as Edward Coke and Blackstone. The context in which they interpreted
the Magna Carta and reliance on their interpretations to justify the American Revolution have
been considered in this section. This section also draws parallels between the various events
that occurred before the revolution and the provisions of the Magna Carta.

Chapter 4:

This chapter deals with the growing emphasis of the natural rights doctrine in

the American Revolution and the main which this new language of rights overshadowed the
reliance on the rights and liberties granted in the Magna Carta. Further, the discussion is
about the role of certain marginalized sections such as women and slaves in the American
Revolution and how the American Revolution affected their rights, if at all. In this context,
this section discusses the difference in the restoration of feudal rights in the thirteenth
century and the development of individual rights in the eighteenth century.

The Magna Carta has been hailed as the first Charter of Liberties and the Americans,
including others, have traced the source of liberties to this document. What this project seeks
to do is to study the myth of the Magna Carta. In order to achieve this, I have tried to study
the situation that prevailed in 1215 when King John set his seal on the document. This is
important in order to understand the nature of the document and whether reliance on this
event, rather document, is in accordance with its spirit or is it merely a symbolic reliance
based on the needs of a particular context in which it was used.
The Magna Carta has been interpreted by various scholars over the years and its importance
is undisputed. However, as has been pointed out, it is important to consider whether this
importance is merely a fiction that has been created over the centuries or whether the Magna
Carta may actually be considered as a source of individual rights and liberties as a part of the
common law tradition.
In the context of the American Revolution the researcher thinks that it is imperative to study
the socio-economic conditions of the colonies in the eighteenth century. Moreover, the
policies pursued by the English with respect to the colonies in the eighteenth century shifting
from salutary neglect to tightening of control have been discussed in the context of the
wars that England was involved in and the pressure on the royal treasury. The taxation of the
colonies to meet the debt evoked responses from the colonists that varied in degree according
to the period in which they were imposed and the manner of their enforcement. These have
been studied in detail to understand the development of the consciousness of the colonists as
being apart from the Crown although initially, they had demanded rights as equal British
The focus of this Project has been on the reliance by the revolutionaries on the liberties
granted in the Magna Carta. The various articles of the Magna Carta have been studied and
discussed with respect to the original context in which they were framed by the barons and
the clergy. All these provisions were not expressly used by the revolutionaries. However, I
have found it interesting to point out the various events in the course of the revolution and
before that may have parallels in the Magna Carta. The slogan of no taxation without
representation that became the benchmark of the American Revolution is considered to have
its roots in the Magna Carta as does the idea of rule of law and trial by jury.

The colonists relied particularly on the writings of Sir Edward Coke in the seventeenth
century. In the course of researching for this project, I found an interesting anomaly that the
colonists obviously ignored. Coke, though the creator of the myth of the Magna Carta and
in some ways the framer of the British Constitution was also the framer of the imperial
Constitution. His opinions clearly indicate that the subjects beyond the realm of England
could not access the common law rights and did not have the same liberties as the subjects in
England. Therefore, his writings have been discussed in fair detail in this project.
Interestingly, after the Declaration of Independence in 1776, the colonists did not demand
rights and liberties as British subjects; instead they based their claims on the basis of natural
rights inspired by the likes of Locke, Hobbes as well as contemporaries like Pitt and Thomas
Paine who wrote Common Sense. However, their claims remained the same with the minor
difference that instead of a loose association and nominal acknowledgement of the Crown,
the colonists now demanded complete severance of all ties from the British. The fact that the
claims remained unchanged, except to a minor degree, I have argued that the change of the
rights discourse by the colonists merely elevated the liberties traced to the Magna Carta to the
level of inalienable and inherent rights of the natural rights theory.
This is important because when one compares the participation of the classes in the tenant
rights movement that led to the historic event at Runnymede and the participation of various
sections of American societies including women and slaves in the American Revolution, and
then when one compares the outcome in terms of distribution of rights, it is hardly different.
The dominant were the ones who abrogated all the rights to themselves ignoring the
contribution of the others. In the case of the Magna Carta there were a few provisions dealing
with merchants, traders, towns and cities. In the American Revolution although there was talk
of freedom of slaves, this remained mere lip-service till much after the revolution. This has
been discussed to understand to what extent a feudal document protected and preserved
individual rights in the eighteenth century.

The Magna Carta

King John stamped his seal of approval to the Magna Carta in 1215 at Runnymede under
pressure from the aristocracy and the Church clergy when he returned from the battle at
Normandy. This Charter of Liberties is generally considered to be modeled on the Charter
issued by Henry I. However, it is important to note that the Magna Carta went beyond

previous charters in terms of the political implications it had on the powers of the monarchy
or the Barons.1
King Richard, the Lion-hearted had left the island to participate in the crusades and had left
the control of the kingdom to his brother John. In 1194, Richard I appointed Hubert Walter as
the Archbishop of Canterbury and Royal Justiciar, who began the tradition of keeping
government records of what had been done.2 During his reign, there was an increased
resistance by the aristocracy to the demands of the monarchy and began to turn to
constitutional resistance since the earlier kings had familiarized them with the common law
of the land. The concept of constitutional ideas was growing in importance throughout the
thirteenth century.
Neglecting these developments, John extorted money from all classes of his subjects in
attempts to expand the empire and regain lost territories such as Normandy. Further, the wars
that Richard had been involved in as well as the sum paid for his ransom had almost emptied
the royal treasury. The wars that John himself fought had only exacerbated the inflationary
situation since the mercenaries he relied on had to be paid out of the treasury.3 Moreover, his
main aim was to gain a certain level of independence from the growing power of the barons
and the Church.4
Earlier Charters had been issued by the kings at their coronation. However, the Magna Carta
was wrested from John although the wordings imply that the liberties in the Charter were
granted by him. The earlier charters had been unilateral grants and recognition of the preexisting system by the newly crowned monarch.5 Therefore, the idea of the Magna Carta

1 Bernard Schawartz,The Bill of Rights: A Documentry History(Sydney: Chelsea Gouse Ltd. 1971,
pg no-3
2 Roy Strong, The Story of Briten: A Peoples History (London, Pimlico,1998) pg no-72
3 David Harris Willson, History of England, 2nd edition,(Illinois: The Dryden Press Inc, 1967) pg no-71
4 Generally G.M. Trevelyn, History of England(London: Longman group Ltd, 1956) pg no-163-169.
5 E.H. Carter and R.A.F. Mears, A History of Britain (Oxford: Oxford University Press, 1937).

being a treaty between the king and his subjects is not entirely misplaced since it was granted
by the king in return for continued obedience by his subjects.6
Although some may seek to argue that it lays the foundation of a constitutional mechanism, it
must be remembered that the grants made in earlier Charters were not always recognized and
the issuance of the Charters was continued as tradition and therefore there was no guarantee
that the rights recognized in the Magna Carta would also be respected. In fact, the
revocation of the Magna Carta soon after it was forced upon the King 7 clearly indicates that it
was not a grant of rights that the monarch could not violate. However, its importance lies in
the fact that it was reissued thirty eight times by the subsequent kings of England.8
The Magna Carta embodied for the first time, in English history, a written instrument wrested
from the sovereign granting rights to the bulk of the politically articulate community. It
was a bargain struck between King John on the one hand and the barons and the clergy on the
other recognizing what were considered as the basic liberties of that time. Therefore, a careful
reading clearly indicates that it was a feudal document seeking to preserve the ancient
privileges of the aristocracy and maintain the feudal structure of the time.
In fact, legal historians like Fredric William Maitland have been at great pains to point out
that the Magna Carta was nothing more than a grant of feudal rights and therefore, should not
be revered as a source of liberties for all men alike. In fact, he goes on to argue that there is
no real element of rights contained within the Charter and that it only seeks to govern the
relationship and interaction between the King and the barons.9
However, the Magna Carta was not restricted to the liberties of the barons alone. In order to
secure their privileges the aristocracy had to seek the support of the clergy, the Londoners and
the freemen who included all classes above the unregarded villeins.10

6 G.M. Trevelyn, History of England (London: Longman Group Ltd, 1956).

7 E. Wingfield,History of the British Civilisation, (Stratford) pg no-165

8 The New Encyclopaedia Britannica, 15th edition, volume 7,pg no- 673
9 John cannon and Ralph Griffiths, The oxford illustrated History of the British Monarchy(Oxford:
Oxford university Press, 1988).


Further, there have been others who have pointed out that the Magna Carta cannot be
completely ignored as a source of rights although it is a feudal document when one considers
the context in which it came into effect and got the royal seal of approval. Although several
provisions were incorporated to regulate feudal relations, there were other provisions that
were not restricted to such relations alone and it was possible to give them broader scope and
application. For example, the use of the term free men was interpreted in later years to
include even those who may not have been included in the feudal context.11
The interpretations given to the Magna Carta over the years have changed its very texture
from a document granting feudal privileges to a Charter recognizing the rights and liberties of
individuals. Most important of these interpretations is the commentary of Sir Edward Coke
on the Magna Carta in the seventeenth century. The language of the Magna Carta has allowed
it to be interpreted at various crucial turning points in history. It was used in order to establish
the supremacy of the Parliament and against exercise of arbitrary power.
Although interpretation resulting from ambiguity of certain provisions of the Magna Carta
have allowed it to be claimed as the First Charter of Liberties and the source of individual
liberties, in the opinion of the researcher, it is important not to forget the feudal context in
which it emerged and the feudal privileges that it aimed at preserving. In the context of this
paper, this gains even more significance since the situations that existed in the colonies did
not allow the feudal structure to take root although ultimately classes and authentic
aristocracy did develop. This was because these developments concerning the aristocracy and
the class distinctions were suited to the American conditions and in turn they affected the
very outlook of the American colonists.12
Socio-economic conditions of the American colonists in the eighteenth century
John Adams declared that the American Revolution dated as far back as the 1620s when the
first plantations were established in the American continent by the British colonists. He is

10 G.M. Trevelyn,History of England(London: Longman Group Ltd. 1956) pg no-170

11 The Bill of rights: A Documentary History( Sydney: Chelsea Gouse Ltd, 1971) pg no-110

12 Clinton Rossitor, Seedtime of the Republic (new York: Brace and World Inc, 1953) pg no-9


often quoted by several scholars as follows The Revolution was effected before the war
commenced. The Revolution was in the minds and hearts of the people.
Taking a cue from this quote, the researcher has tried to discuss the socio-economic situation
that prevailed in America at the time and its impact on the political lives of the people. This is
important to understand in the context of the rights discourse that developed immediately
before the Declaration of Independence and the events that coloured the colonists perception
of citizenship, imperialism and most importantly, liberty which they defined as freedom
from alien dictation.
It is evident that the American colonists definitely considered themselves as a part of England
and were in fact, proud of their association with their parent country. 13 They claimed that
they respected the liberties that existed in England and had inherited this tradition of freedom
as English subjects when they emigrated. The colonists were therefore, not only dedicated to
liberty but to liberty according to English ideas according to English principles. In fact, it is
often said that the eighteenth century American was simply a brand of the Englishman since
the institutions and laws as well as traditions and ideas were based on those existing in
England. Thus, they were more English than the English.
The population in the American colonies had been steadily increasing since the early 1700s,
partly because of the increased number of immigrants into the continent. The increased
pressure of the population on land required the westward expansion of the colonies. However,
the main hindrance to such expansion was the Indian threat to the west of the mountains. The
early settlers required that the governments and the institutions that they set up for
administration not interfere with their tasks. This perception was strengthened by the fact that
wages were higher in the colonies and the settlers had better working conditions than those in
Such an attitude requiring non-interference by the State was so deeply entrenched in the
minds of the colonists that it finally took shape as freedom of speech in the American
Revolution. Newspapers had been constantly suppressed in the colonial state. However,
Benjamin Franklin14 and other leaders linked this liberty, as also other liberties, with the right
13 James Kirby Martin : America and Its People(New York; Harper Collins publishers,1989) pg no-111

14 The American Experiment: The Vineyard of Liberty(New delhi: Universal Books Stall, 1982) pg no- 24


to property. Several states starting with the state of Virginia had guaranteed freedom of
speech, assembly and press as well as trials by jury. There was a republican presumption that
citizens should have opportunity to lead productive lives, uninhibited by laws violating
personal conscience or denying the opportunity to acquire property.
In the early years of establishment of the colonies, the King had arbitrarily assumed that the
colonies were not under the control of the Parliament. The monarchy was then involved in a
series of revolutions in England itself such as the Puritan Revolution. By the time that the
Parliament gained some amount of supremacy in terms of political power over the King, the
American colonists had already established a system of governance for themselves providing
for several rights of the colonists. Therefore, there was a visible expansion in political, social
and religious liberty.
By 1765 the colonists had established a society more open, an economy more fluid and a
government more constitutional than anything the Europeans would know for years to come.
The Americans had abolished the land tenure system of feudal societies and wanted only to
consolidate and expand the liberties that had become an integral part of their lives. This was
mainly a result of the salutary neglect15 throughout this period when the English King and
Parliament were involved in conflicts at home and expansion of territory without
concentrating on the issue of governance of the colonies.
The main point of view amongst those living in England was that the colonies should provide
them with raw materials and not compete with their manufactured products. These
mercantilist policies were not always strictly enforced for a variety of reasons that will be
discussed in detail subsequently in this section. Therefore, the colonists never perceived
themselves to be inferior to the British subjects living in England; rather, they considered
them as their equals. The colonists wanted a sort of near-equality for the present and hoped
that in the future there would remain a loose association with the English empire and that the
economic and diplomatic relations of the colonies would lie with the empire for some more

15 www.fsmitha.Com


This variance in the way the British subjects viewed the colonists and the manner in which
the colonists viewed themselves or the British subjects in Britain played a pivotal role in the
drift between the colonists and the British Empire.
Till 1763, England had formed no firm policy for control over the colonies for several
reasons, some of which have been enumerated above. As has been stated above, prior to
1765, the British policies were not always enforced in the colonies. One of the main reasons
for this was the remoteness of the colonies. There was no communication through any regular
mail service between the parent country and the colonies till 1755. The technique of royal
disallowance was also weakened to a great extent because of the distance and the colonial
assemblies could not be kept under check. In fact, what had developed was the policy of
salutary neglect.
Other reasons involved the constant wars that she was engaged in. The treaty in 1763 marked
the end of the Seven Years War in which the British had been involved against France in
Canada. Ironically, for the colonists it meant that they no longer needed the protection against
the Gallics.16 The English debt during the war had increased from 75 million to 137
million sterling. Therefore, the main concern of the newly crowned monarch, King George III
was to repay this debt. The situation was aggravated by the smuggling activities that were
carried on by the American traders which cost several millions to the royal treasury. In order
to prevent such losses of revenue, the British decided to strengthen control over the colonies
and several legislations were passed in 1763 to meet this necessity. Therefore, the era of
salutary neglect was drawn to an abrupt end by the spate of laws that the English
Parliament passed in order to control the American economy. Further, the Pontiac uprising in
1763 also made great demands on the royal treasury.
Another issue that arose was the lack of colonial participation in the wars in which the
English were involved. The colonies did not offer any support for the war and saw the Seven
Years War only as a struggle between England and France. However, there were Americans
who joined provincial regiments and fought along with the redcoats. Interestingly, the
hostility between the redcoats and the colonists, which would finally find expression in the
Boston massacre, started during this war since the colonists considered them needlessly
overbearing and aristocratic.17



The situation in the colonies became extremely grave and George Grenville, an important
political leader in England who became the Kings chief minister in 1763 was required to
solve the mounting problems with respect to the colonies. He believed that the colonists had
forgotten their place as inferiors to the British and considered that eventually they would be
bound to yield obedience. In order to control the smuggling, the Orders-in-Council in 1763
was passed to allow the stationing of ships of the royal navy in American waters. To solve the
issues with the Native Americans, the Proclamation of 1763 declared that territory west of the
Proclamation line was forever to be reserved to the Indians. The purpose of this proclamation
was also to prevent the colonists from manufacturing goods that would compete with English
manufactured products.18 However, these policies often met with resistance in the form of
non-importation in the colonies.
During the 1760s Benjamin Franklin said that the relation between the colonies and the
Crown had soured because of the political blunders made by the Parliament in order to gain
control over American trade and commerce. The trade control over the colonies had started
with the Oliver Cromwell and Charles II who made policy decisions along with the
Parliament to control the trade in the colonies.19
The immediate British concern 1763 onwards was to keep the colonists under control. To
ensure this, Grenville decided to maintain 10000 British regulars in the colonies and it was
decided that the cost of maintaining them at 250000 should be borne by the colonists
themselves. These taxation laws were not met favourably in the colonies. There was a lot of
resistance to the various Acts of the Parliament with the slogan no taxation without
representation. In 1766, as a result of the constant and widespread protests by the colonists,
the Parliament repealed the Stamp Act and instead passed the Declaratory Act which gave
them the sole and exclusive authority to levy taxes in the colonies for any purpose
whatsoever. The anger of the colonists was further increased by the appointment of
royalists such as Andrew Oliver and Thomas Hutchinson. The attitude of these appointees

17 ibid
18 Supra note 22
19 Supra note 22


infuriated several leaders such as James Otis Jr. and Samuel Adams who were later able to
rally the masses behind them in the war of independence.
It is of great importance to note that the Townshend duties that were levied in 1767 by
Charles Townshend Champagne Charlie the Chancellor of the Exchequer were inspired
by the lengthy interview of Benjamin Franklin before the Parliament. The plan devised by
Townshend was based on the misplaced distinction between internal and external taxes. The
main purpose was to assert the control of the English over the colonies. The import duties
that were imposed were mainly on luxury items and the only item on the list that affected the
colonists in general was the tax on tea. In May 1767, Townshend brought forward three Acts
to suspend the New York Assembly till it complied with the Mutiny Act of 1765; to establish
a Board of Commissioners of customs for the colonies; and the Revenue Act.20
The situation in Boston had constantly worsened and flared up with the Boston Massacre. On
March 5, 1770 the hostilities between the English soldiers and the Bostonians reached a point
where a harmless snowballing of the redcoats degenerated into a mob attack. The soldiers
were attacked with mud, snowballs and rocks. At the end of this debacle, five men lost their
lives.21 Interestingly, John Admas along with Josiah Quincy appeared as defense counsels for
the British redcoats in the trial for manslaughter and murder.22
The tension between the colonies and England were constantly increasing. Gauging the
severity of the situation, King George III asked Lord North to form a cabinet in 1770. It was
through his efforts that the Townshend duties were repealed on all items except tea. Under the
leadership of North, the relations slowly improved. However, there still remained a lurking
doubt in the minds of the colonists as regards the conspiracy of the Parliament since there
were regular troops along the frontier and the Royal navy ships in the American waters.
Lord North proposed the Tea Act in 1773 to protect the interests of the East India Company
by authorizing the company to ship tea directly from India to the colonies and set up its own
tea agents at various ports. The cost of the tea was to decrease enormously by this plan.
However, the colonists stood by principle of non-importation because of the trade duties that
21 ibid
22 ibid


had been levied. They saw these duties as a part of the conspiracy to reduce them to abject
political slaves. Therefore, the colonists insisted that the ships containing tea be shipped back
to England. Under the provisions of the Act, if the cargo was not claimed within 20 days, then
it would be unloaded and sold at a public auction.
Hutchinson, therefore, expected to pay the Townshend duties from the money that would be
collected at this auction. In response, on December 16, 1776, the colonists dressed as Indians
and emptied 342 chests of tea into the Boston harbour in what came to be known as the
Boston Tea Party.
This unexpected act of the rebellious colonists came as a surprise to Lord North in England
who then decided that to control the situation a series of laws would have to be passed.
Hutchinson was also replaced with General Thomas Gage, Britains North American military
commander. The laws that were enacted by the Parliament came to be known as the Coercive
Acts. The first one of these that received royal approval by King George III was the Boston
Port Bill in March 1774. The purpose of this law was to close the ports of Boston and make
trade illegal till the time that the Bostonians paid for the tea.
The next coercive Act was the Administration of Justice Act which provided for greater
protection of customs collectors and other imperial officers. If these officers were harmed by
the colonists, the Governor was given the power to send them to England for trial. This was
seen by the colonists as a violation of their rights to be judged by their peers and given a trial
by jury.
The third coercive Act was the amendment to the Quartering Act of 1765 which gave General
Gage the power to set his camp in any area, including unoccupied private homes as long as
rents were paid by the redcoats. This step was important because the enforcement of the new
laws and suppression of any revolt required an increased presence of the British army in the
colonies.23 Although the Quebec Act of 1774 related to the territorial administration of
Canada, the colonists considered it as a part of the conspiracy and felt that since it did not
allow for popularly elected assemblies, it was a ploy to deprive the colonists as well of their
well-established rights.24 These events underlined the growing resentment against imperial
rule and unwanted interference in the institutions of self-government that had been
23 The Americans language of Rights (Cambridge: Cambridge University Press, 1999), pg no- 79
24 ibid


established by the colonists. It was through these events that the leaders gathered support and
used the language of rights to express their demands and claims.
Reliance on the provisions of the Magna Carta in the American Revolution
As has been observed in the preceding section, the American colonists considered themselves
as the equals of their English counterparts residing in England. It is therefore, not surprising
that they relied on the British laws and traditions to assert their rights and liberties that they
felt were being violated by the various policies pursued by King George III and the
Parliament in England. Therefore, according to Jack Rakove, the language used by the
colonists was their mother tongue since the tradition of English common law that they had
inherited firmly incorporated the language of rights.25
As early as 1735, the Assembly of South Carolina passed a resolution stating that the
colonists were entitled to the same liberties and privileges as other British subjects. This
resolution went a step further by giving the Commons House in South Carolina the same
rights as the House of Commons in England as regards the issue of Money Bills. This is
important to understand in the context of the fact that the key institutions in the colonies,
mainly the provincial assemblies, were considered as based upon the model followed in
England and they demanded rights not as natural rights but as ancient rights of Englishmen.
It was in the context of their own adversities as well as those that they remembered that
they relied on the Magna Carta and the liberties incorporated in it which could not be violated
by the King himself.
The colonists mainly relied on the interpretations of the Magna Carta by Edward Coke
presented during the English Revolution. Coke accepted the Charter of 1225 of King Henry
III as the definitive Charter and based his interpretations on it. These were subsequently used
and further interpreted and applied to the Parliament, judicial decisions and legal
commentary. Reliance was also placed on the opinions and statements of Blackstone who
wrote that the rights and liberties of every Englishman were set out in the Magna Carta, the
Petition of Right, the Habeas Corpus Act, the English Bill of Rights and the Act of
25 ibid
26 Michael Kent Curtis, Historical Linguistics, Inkblots and Life After, 78 NCLR 1071 (2000) at p. 1096.


Article 60 of the Magna Carta and its application to the American Revolution
The relevant portion of Article 60 reads as follows: All these customs and liberties that we
have granted shall be observed in our kingdom in so far as concerns our own relations with
our subjects. As has been discussed in detail above, the colonists for most part of the
eighteenth century considered themselves as English subjects with the same rights and
liberties as their counterparts who lived in England. It is possible that such an idea stemmed
from this provision of the Magna Carta which sought to preserve the rights of all subjects in
the kingdom, since the colonists firmly believed that they were a part of the British Empire.
What they forgot was that the Magna Carta applied to all subjects within our realm which
was supposed to be restricted to England.
Articles 12 and 14 of the Magna Carta and no taxation without representation
The relevant portion of Article 12 reads as follows: No scutage or aid may be levied in our
kingdom without its general consent
The relevant portion of Article 14 reads as follows: To obtain the general consent of the
realm for the assessment of aidor a scutage, we will cause the archbishops, bishops, abbots,
earls, and greater barons to be summoned individually by letter
The barons had come together to prevent the King from raising aids on their land beyond
what custom ordinarily allowed and was therefore called a tenant-right movement on the part
of an oppressed upper class against their King. However, it must be remembered that the
burden that the King demanded them to fulfill was passed on to the classes below. The main
purpose as has been discussed earlier was to put a check on the arbitrary power of the King so
that he could impose taxes only with the sanction of the Common Council. It was in this
context that these provisions were inserted in the Magna Carta.27
However, during the American Revolution, it became the basis for the slogan of no taxation
without representation. The only response that it generated from King George III was that
the colonists had no access to this right since they were across the ocean and the Magna Carta
did not apply to them.28 This view expressed by King George III is strikingly similar to the
opinions of Coke in his writings. Paradoxically, interpretations of Coke were being used by
both sides in the American Revolution.
27 G.M. Trevelyn, History of England (London: Longman Group Ltd., 1956) at pp. 163 169.


The slogan of no taxation without representation had been raised long before the colonists
were taxed by King George III. In the seventeenth century when James was given title to all
Dutch lands in North America by his brother, King Charles II in 1664, the proprietary charter
did not require him to set up a representative assembly of any kind. In response to this, the
Long Island Puritans refused to pay local taxes demanding a representative assembly to
control exercise of arbitrary power.
Pursuant to the policy of Grenville to tax the colonies, the Parliament passed several laws
from 1764 onwards. One of the first was the Sugar Act of 1764 which placed duties on
several foreign goods purchased by the colonists. The Stamp Act of 1765 was an assertion by
the Parliament to directly tax the American colonies. 29 In this context, Grenville spoke about
virtual representation according to which all the British subjects were considered to be
represented in the Parliament, at least in theory. However, this idea did not go well with the
American colonists.Claiming as equals of their British-born counterparts, the colonists
demanded that the assemblies that they had established be recognized as possessing equal
powers as the Parliament and subordinate to the Crown alone.30
In 1765, Patrick Henry presented seven resolutions in the assembly in Virginia out of which
four were accepted. These resolutions once again expressed the sentiments of the colonists
that it was a violation of their rights to be taxed by the Parliament where they had no form of
representation. These resolutions gave the provincial assembly of Virginia almost the same
powers as those of the Parliament.
The Stamp Act Congress met in New York in 1765 where they drafted Declarations on behalf
of the colonists calling for immediate redress for their grievances. The delegates accepted that
they were under the British Crown but they maintained that their non-representation in the
Parliament implied that it could not tax them. The power of taxation with respect to the
colonies was to be reserved for the provincial assemblies of the colonies.31
Articles 21 and 39 of the Magna Carta and trial by jury and rule of law
29 The First American Constitutions (Chapel Hill: University of North Carolina Press, 1980) at p.
30 ibid
31America and Its People (New York: Harper Collins Publishers, 1989) at p. 111.


The relevant portion of Article 21 reads as follows: shall be fined only by their equals, and
in proportion to the gravity of their offence.
The relevant portion of Article 39 reads as follows: 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 judgment of his equals or by the law of the land.
Ignoring the fact that this article was meant for the protection of the privileges of the barons
alone, Articles 21 and 39 have been interpreted by Sir Edward Coke in the seventeenth
century to include the right of trial by jury to all men, right against arbitrary arrest, and the
right to speedy justice. The modern significance attached to this right started in 1641 when
the second part of the Institutes of the Laws of England by Coke was published.32
However, it is interesting to note that at the time when the Charter came into being in 1215
there was no system of trial by jury.33 Colonial charters had been extended to the colonies in
America with respect to the criminal procedure.The right of trial by jury was understood in
the American context to cover all procedural issues including that great bulwark and
palladium of English liberty, habeas corpus.The idea of the rule of law had developed in
Europe against the arbitrary exercise of power by the King. Moreover, this article seems to
provide for the trial by due process of law and therefore, embodies the principle of rule of
law as well. This is considered, as the most important link between the Magna Carta and the
American Bill of Rights. Furthermore, others like G.M. Trevelyn have argued that it gives
expression to the spirit of individual liberty in later years when the document was interpreted
in the context of the various revolutions.
The principles contained within Article 39 were invoked in 1772 when the Parliament passed
a piece of legislation based on common law precedent that Americans could be transported to
England with respect to crimes relating to the navy. This generated a huge uproar in the
colonies. Leaders like Samuel Adams termed it a violation of rights without naming the
source of the right that he was claiming. If one looks closely enough, the answer is found in
the interpretation of Article 39 itself.
32Thomas R. Phillips, The Constitutional Right to a Remedy, 78 NYULR 1309 (2003) at p. 1320
33 The Oxford Illustrated History of the British Monarchy (Oxford: Oxford University Press, 1988) at p. 126.


Another incident in which it came up in the events leading to the American Revolution was
the implementation of the Stamp Act of 1765. Those who violated this legislation were to be
tried in courts of admiralty. The furor that ensued was an assertion of the right to trial by jury
guaranteed by the Magna Carta. Further, the punishment that was sought to be imposed was
by courts in England which was not in accordance with the provisions of Article 39 of the
Magna Carta. Article 21 of the Magna Carta is important in this context since military
punishment for something that was a civil offence was considered as against the rule of law.
Moreover, the colonists relied on the statements made by Edward Coke and claimed that
according to his statements, the Stamp Act was illegal and beyond the powers of legislation
since it violated the principle of rule of law. In 1609, Coke had stated that when an act of
Parliament is against common right or reason, or repugnant, or impossible to be performed,
the common law will control it and adjudge such an Act void.34
Articles 45 of the Magna Carta and the path towards self-government
The relevant portion of Article 45 reads as follows: We will appoint as justices, constables,
sheriffs or other officials, only men that know the law of the realm and are minded to keep it
well. Although the feudal context was different and it was not really raised as an issue
during the American Revolution, the researcher considers this provision as an important precursor to the brewing discontentment of the colonists. This is with respect to the appointment
of the Governors to the colonies. The Governor was either an Englishman or a loyalist from
the colonies. This was an important factor when the assemblies in the colonies sought to
establish their independent powers from the Governor and went a long way in upholding selfgovernment.
The Governor was considered as an outsider, a stranger and an English autocrat. The
colonists felt that the interests of the Governors was not the welfare of the people and had
distinct interests of their own. In their opinion, if the Governors were given a free hand then it
would lead to a situation where the interests of the assemblies and thereby of the colonies
would no longer be prioritized. It was in this context that the salary of the Governor was
decided upon by the colonial assemblies in order to curtail his powers to a large extent.



Such a representation of the Governors by the assemblies allowed them to abrogate to

themselves several powers that had been hitherto granted to the Parliament such as control
over procedure, freedom of debate and determination of disputed elections. During the
eighteenth century, the elite leaders who were members of the colonial assemblies continued
to argue against the control exercised by the Crown and considered themselves little
parliaments with the same powers and rights of legislation over the colonial territories as the
Parliament exercised over the territory of England. Therefore, the colonists rejected the idea
of an imperial Parliament.35 The Governor, however, continued to retain the power to
prorogue and dissolve the assembly.36
The power of the Governor to dissolve the assemblies gained significance in the context of
the Townshend duties of 1767. In his Letters from a Former in Pennsylvania, John Dickinson
pointed out that the Townshend Act was a thinly disguised attempt on the part of the
Parliament to reduce the colonists to political slavery. In 1768, as a response to Dickinsons
letters that were widely published in pamphlets, the Massachusetts General Court with the
help of Samuel Adams drafted a Circular Letter calling for petitions. Lord Hillsborough
demanded the General Court to apologise and instructed the Governors of the various
colonies not to allow debates on the Circular Letter. If the assemblies did not comply with
these orders, they were to be dissolved. Governor Bernard exercised this power and dissolved
the Massachusetts Assembly since it had not rescinded its letters as required by Lord
Hillsborough.37 It is through this struggle for parliamentary privileges could the colonists
identify and determine the fight for liberty of the individuals.38
Article 61 of the Magna Carta and the right to revolt
The relevant portion of Article 61 reads as follows: If we, our chief justice, our officials,
or any of our servants offend in any respect against any man, or transgress any of the articles
35 America and Its People (New York: Harper Collins Publishers, 1989) at p. 111.
36 ibid
37 ibid
38Seedtime of the Republic (New York: Brace and World Inc., 1953) pg no-23


of the peace or of this security, and the offence is made known to four of the said twenty-five
barons, they shall come to us or in our absence from the kingdom to the chief justice to
declare it and claim immediate redress. If we, or in our absence abroad the chief justice, make
no redress within forty days, reckoning from the day on which the offence was declared to us
or to him, the four barons shall refer the matter to the rest of the twenty-five barons, who may
distrain upon and assail us in every way possible, with the support of the whole community
of the land, by seizing our castles, lands, possessions, or anything else saving only our own
person and those of the queen and our children, until they have secured such redress as they
have determined upon. Having secured the redress, they may then resume their normal
obedience to us.
Paragraph 3 of Article 61 reads as follows: Any man who so desires may take an oath to
obey the commands of the twenty-five barons for the achievement of these ends, and to join
with them in assailing us to the utmost of his power. We give public and free permission to
take this oath to any man who so desires, and at no time will we prohibited any man from
taking it. Indeed, we will compel any of our subjects who are unwilling to take it to swear it
to our command.
Paragraphs 2 and 3 of Article 61 clearly grant a right to revolt against the King in case he
fails to fulfill his obligations as a King. This was essentially to limit the arbitrary power that
John had exercised and to allow for a check on his plenary powers. Paragraph 3 allows the
barons to involve the masses in the revolt against the King.
When the Stamp Act of 1765 was introduced in the colonies, there was strong opposition to it
in the form of petitions to the King and the Parliament. Petitions had been sent even with the
introduction of the Sugar Act on April 5, 1764. Such an action of the revolutionaries was not
different from the provisions of paragraph 2 of Article 61 that required the Great Council of
Barons to first make an attempt to bring to the notice of the King or his agent the grievances
that were sought to be redressed.
In response to the Coercive Acts, the colonist leaders organized themselves into a Continental
Congress which met in Philadelphia on September 5, 1774. They prepared a petition known
as the Declaration of Colonial Rights and Grievances. On October 19, 1765 while stating
that (T)he members of this Congress, sincerely devoted, with the warmest sentiments of
affection and duty to the majestys persona and government resolved that if the laws passed


by the Parliament abrogating the rights of the colonies were not repealed, the colonists were
prepared to go to war to secure their rights.39
However, several leaders such as John Galloway still maintained that the imperial ties should
not be severed since in his opinion the stabilizing influence of the Empire should be allowed
to continue and drew on the Albany Plan of Union in 1754 40 seeking to establish a loose
association with the British Crown while at the same time preserving self-government of the
colonies. However, Galloways Plan of Union was defeated in the Congress.
The second Continental Congress met on May 10, 1775 in Philadelphia. An important precursor to this meeting was the fact the Benjamin Franklin had represented several colonies as
an agent in order to seek conciliation with the British Crown but returned empty handed. 41
In September 1774 itself, Lord North had declared: the die is now cast, the colonies must
either submit or triumph.
The Declaration of Independence in 1776 listed several offences attributed to George III.
Although by this time, the colonists had shed all pretences of being English and were arguing
for liberty on the basis of an American identity that was being forged at the time. The main
argument was that the King had violated the social contract theory. Traces of the influence of
the Magna Carta may be found implicit in this argument. After all, the Magna Carta was also
an agreement between the barons and the King granting liberties that even the King could not
violate. If this line of argument is compared to the one that was used by the revolutionaries,
one finds remarkable similarities. Therefore, in the opinion of the researcher, it may very well
be said that the Magna Carta provided the starting point to the war of independence by
allowing for the right to revolt against the arbitrary exercise of power thereby interfering with
rights and liberties that had been considered as a given.
Moreover, Articles 12 and 13 refer to the city of London as well as cities, towns, boroughs
and ports. In the Magna Carta, the reference to the City of London was to guarantee the
rights of commercial transactions. Interestingly, the taxes that were imposed on the trade and
39 America and Its People (New York: Harper Collins Publishers, 1989) at p. 128.
40 America and Its People (New York: Harper Collins Publishers, 1989) at p. 130-131
41 An Outline of American History, p. 35


commerce of the colonies affected the ports the most which is one of the main reasons that
Boston and New York became such important centers for the revolution. The Boston Port Act
had been enacted by the Parliament for the very purpose of controlling colonial trade. One of
the reactions to this Act can be seen in the Maryland Constitution of 1776 where the
guarantee of preservation of rights was given to the city of Annapolis.42
The place for the arguments based on Magna Carta in the American Revolution with the
increasing importance given to the Natural Rights theory
Throughout the eighteenth century, the American colonists used different languages of rights
to preserve their liberties. For most part of the century, before the Declaration of
Independence, the colonists considered themselves to be an essential part of the Empire and
wanted the same rights and privileges that their counterparts in Britain enjoyed. They relied
on the Magna Carta and the British constitution and the rights granted therein to all subjects
of the kingdom. Further, a Son of Liberty in Massachusetts inspired by the political writings
of Pitts stated our toast is, Magna Carta, the British Constitution, Pitt and Liberty
It was when they felt certain that their efforts to gain equal status would not be fulfilled, that
they changed their discourse. They now turned to the natural rights theory and the idea of
social contract inspired by the writings of Locke and Hobbes.
The revolutionaries no longer spoke of preserving the rights that had been granted to them by
the previous kings but instead spoke of the rights that they possessed as men and the fact that
these rights granted by God could not be violated even by the King. Jefferson was one of the
strongest advocates of the natural rights doctrine and reiterated the first principles.
Moreover, he spoke of the inalienable rights of equality, liberty and pursuit of happiness
which has been equated with the right to property.
Therefore, the Declaration of Independence and the constitutions of several colonies
incorporated rights in the form of natural and inalienable rights. Interestingly, as early as
1764, James Otis in The Rights of the British Colonies claimed that the colonists were
entitled to all the natural, essential, inherent, and inseparable rights but this was once again
42 The American Language of Rights (Cambridge: Cambridge University Press, 1999) at p. 79.
43 E. Wingfield, History of the British Civilisation, (Stratford) at p. 360


claimed as subjects of the British Crown. 44 These rights were sought as equals to British
subjects. Therefore, the process of using the natural rights discourse to restore rights that the
colonists enjoyed under the Magna Carta, British Constitution and common law had begun
in the 1760s itself.
However, it is important to note that the use of the rights in the Magna Carta was not
restricted to the 1760s alone although later it was definitely overshadowed by the natural
rights theory. For example, James Madison clearly stated that the right to trial by jury was
definitely a right but could not be elevated to the status of a natural right. Therefore, it
appears to the researcher that he continued to rely on the rights in the Magna Carta as a
source of such rights although he may not have explicitly stated it.

Women in and after the American Revolution

It is interesting to note that the American Revolution allowed the involvement of hitherto
excluded groups. For example, there are instances of women participating in the revolution.
They contributed in several ways. Esther DeBerdt Reed of Philadelphia headed an
Association where women met regularly to sewed uniforms and knitted stockings for the
Continental army. Further, they served in the war as nurses, laundresses, cooks and
companions to the soldiers in the Continental Army. However, their role was not restricted to
such domestic work alone. Since the men were away, women had to take up their roles as
weavers, carpenters, blacksmiths and even shipbuilders. Margaret Hill Morris became famous
for her expertise in dealing with the sick and the wounded.
There are instances of women being involved in the actual act of warfare itself. A well known
illustration is that of Mary Hays, of Lancaster County in Pennsylvania. After her husband was
wounded and fell in the Battle of Monmouth in 1778, she fired cannon herself. However,
later it was felt that if such instances were glorified, then it would send the wrong signals to
the women who would want to break out of the mould. It was in pursuance of this that she
was later represented as Molly Pitcher as someone who only played the role of a waterbearer. However, it is impossible to ignore her role and that played by several others on the

44 A Historical Record of American Constitutional Development (New York: Alfred A. Knopf, 1958) at p. 126


battle field such as Deborah Sampson, alias Robert Shirtliffe, and Nancy Hart nicknamed
War Woman.45
Although there have been several histories written about the womens role in the American
Revolution and their active participation, the instance of Molly Pitcher indicates the
patriarchal male view point of the time. Fearing just this, Abigail Adams, wife of John
Adams, wrote to him asking him to remember the ladies and be more generous and
favourable to them than your ancestors. She continued with a warning that if women were
not considered, then we (ladies) are determined to foment a Rebellion, and will not hold
ourselves bound by any law in which we have no voice or representation. 46It can be clearly
seen from the language of this letter, that she was using the same rights discourse as was
being used by the American colonists in their war against the British after all, their rallying
point had been taxation without representation.
In response to her letter, John Adams wrote back stating we know better than to repeal our
masculine system since (men) have only the name of masters. It cannot be ignored that he
was fully conscious of the social practices and the legal system of the time that made the
women legally dependant on their fathers or husbands.47
It would be unfair to say that the American Revolution did not affect the women in any
positive manner whatsoever. As has been stated above, the fact that men had gone to war
implied that the women took up roles of carpenters etc. which had been earlier forbidden for
them. However, it must be remembered that such a situation did not exist across all classes;
employment prospects as has been discusses were restricted to the women of the lower
classes. At the same time, women of the upper classes were equally affected. Earlier, men had
complete control over all family concerns. The war created the idea of the republican
mother who had to socialize her children; particularly her sons in a manner that they would
grow up with republican ideology deeply entrenched in their value system. Therefore,
although their role may not have been elevated in the public sphere, their position within the
family was definitely elevated.48To say that it had a great impact on their lives would be
unduly glorifying the effects of the American Revolution because their powers could be
45 The American Language of Rights (Cambridge: Cambridge University Press, 1999) at p. 79.
46 America and Its People (New York: Harper Collins Publishers, 1989) at p. g no- 126
47 ibid


curtailed at any point by the fact that they were property of the husband and had no rights as
individuals after marriage.
The American Revolution had been fought based on the natural rights doctrine of John Locke
that everyone is born free and equal. It appeared that this equality was restricted to men
alone. Almost all States allowed only free white male propertied adults to vote. The only
exception was the State of New Jersey which through its constitution gave the right to vote to
all inhabitants of this colony, of full age, who are worth fifty poundsand have resided
within the county for twelve months. The wordings of this constitution allowed women to
vote as well. However, this must be approached with some caution since as has been stated
earlier married women were considered as the property of their husbands. Therefore, the right
to vote for women was restricted to widows and spinsters. Moreover, this entitlement for
women was short lived since in 1807, under political compulsions, the state legislature
ignored the wordings of the constitution and restricted the right to vote to adult white males
who paid taxes.49
Slaves in and after the American Revolution
Slavery was one of the most incongruous truths of the American Revolution. The
inconsistency in the arguments for liberty and natural rights was pointed out by the existence
of the large slave population in the thirteen states. It is interesting to note that in the 1760s
when there was a challenge to the British taxes, some of the leaders claimed that all colonists,
black or white, were free born British subjects and entitled to all essential civil rights.The
participation of the African-Americans in the American Revolution cannot be ignored.
Interestingly, by 1779, one in every 7 revolutionary soldiers in the army was black. 50 They
had been promised freedom and although they fought bravely, the dream of liberty did not
materialize for them immediately after the American Revolution.
The core of the American Revolution had always been equality and liberty. By the middle of
the 1770s the institution of slavery was being challenged in the northern states as being
unchristian cruel. Jefferson, the very leader who relied on Lockes inalienable rights of
48 ibid


liberty, life and pursuit of happiness believed that slavery was the most unremitting
despotism but never freed his own slaves; on the contrary, he was a firm believer in racism
and the labour of his slaves gave him the time to pursue human liberty for the white
population of the Confederation. It is interesting to note that in the first draft of the
Declaration of Independence, Jefferson had accused King George III of slave trade although
on the insistence of Southerners this clause was struck out from the final draft of the
Constitution and there were no provisions to be made on slave trade in the colonies till
The importance of the slaves was recognized in 1775 when Lord Dunmore in Virginia offered
emancipation to slaves in return for them fighting in the war. In fact, the black population that
had participated in the war proved itself creditworthy for the Americans but the entire
regiment was wiped out by a British attack. Earlier, in 1774, Benjamin Franklin along with
others, mainly the Quakers, in Philadelphia organized an abolition group. In 1780 the efforts
of various Revolutionary Americans along with the Quakers resulted in Pennsylvania
becoming the first state to declare slavery as an illegal practice. Following this, several states
in the North made it possible to abolish slavery. In states like Massachusetts, where slaves
had been emancipated, the freedom was often accomplished by judicial decree. There were
instances like those of Quok Walker, a slave, relying on the very discourse of rights in the
American Revolution who sued their masters for violating the eternal rule of all men are
born free and equal. Although, Washington did not free his slaves during his lifetime, in his
will he provided for their emancipation.
However, the economic and political interests of the leaders of the American Revolution
outweighed all ideological concerns as regards the issue of slavery. Requirement for cohesion
between the colonies ensured that those against the continuation of slavery withdrew their
resistance so that a consensus could be reached regarding more pressing issues. Therefore,
the concept of liberty of the American Revolution was never extended to the slaves by the
Constitutional Convention.52
Liberties, the American Constitution and the Bill of Rights

51 America and Its People (New York: Harper Collins Publishers, 1989) at p. 156
52 The First American Constitutions (Chapel Hill: University of North Carolina Press, 1980) at p. 169.


During the American Revolution itself, there had been heavy taxation on the farmers since
funds were required for the Continental Army. Although, the ideals of the American
Revolution were well accepted, the impact was barely visible for the poor. More than twenty
percent of the white population lived below or at the level of the poverty line. Most were
unskilled labour that could not get any employment. The inflation created during the war
because of the printing of currency by both the national and the state governments to meet the
war expenses had led to greater impoverishment.53
Even after the war, the property of the loyalists that had been seized was sold to the highest
bidder instead of redistributing it amongst the poor. The prosperity that had followed
immediately after the American Revolution was therefore, short lived with the governments
and the farmers being crushed under its costs. The laws made by several states allowed the
governments to seize any property for the purpose of payment of taxes. The farmers in
Massachusetts lived in the constant fear that the government may at any time take away their
farms, cattle, plows and other equipment. The people did not trust the sheriffs, judges and
lawyers who were involved in the process of seizing their property and rendering them even
more helpless than before.
It was in this context that the concept of liberties often clashed with the right to property and
resulted in several heated debates. In 1787, James Madison claimed that the only method to
ensure that the various factions in society did not come in conflict with each other was to
dilute the power and passion of local factions by enlarging the sphere of government into a
nation of many regions, interests and opinions. This was fundamental to the Federalists
ideas of creating a strong central government.54
In response to the economic conditions after the American Revolution, leaders like Job
Shattuck, Eli Parsons, Luke Day and Shays emerged leading rebellions such as the Shays
Rebellion. They targeted the Courts and did not allow their proper functioning. Some feared
that these local rebellions could lead to a Civil War across the thirteen states. News of the
persons without education or reputation threatening the security of the confederation reached
the leaders of the American Revolution such as Washington, John Adams, Jefferson, and
Hamilton among others. The Shays rebellion played on the minds of these leaders and other
53 America and Its People (New York: Harper Collins Publishers, 1989) at p. 184
54 The American Revolution Reconsidered (Calcutta: Scientific Book Agency, 1967) at p. 69


representatives of lawyers, planters, merchants of education and wealth as well as

accomplishments when they met at the Constitutional Convention in Philadelphia.55
Under these circumstances, the delegates decided that in order to achieve stability and
security of liberty, a strong national government would be required and the Federals had their
way in establishing a federal government with several powers. Further, they all agreed that
this government would represent the people and would be elected by them that is, it would
be a republic.
However, as has been pointed out earlier, the issue of liberties was never reconciled
completely during the American Revolution. For many delegates in the Convention, such as
Rufus King, Gouverneur Morris and other Southerners, slaves were merely property. The
issue with respect to slaves was never as regards equality and liberty it was whether the
slaves would be represented through their masters or not as they were his property.56
Liberty, in the American Revolution was a sacred term which everyone paid reverence to.
The most important of the liberties was the liberty of conscience. This was in context of the
Protestant Reformation in Europe and the large-scale persecution, which was one of the
causes of immigration to America in the first place. In fact, when George Mason drafted the
Virginia Declaration of Rights in 1776, he entitled all citizens equally to the free exercise of
religion, according to the dictates of the conscience. It is interesting to note that this did not
put an end to the taxes collected exclusively for the Anglican Church. It was in 1786 only that
there was a complete separation of the Church and the State. This marked an important stage
in the movement towards individual rights.57

55 The American Experiment: The Vineyard of Liberty (New Delhi: Universal Book Stall, 1982) at p. 25

56 The Americans Experiment: The Vigeyard of Liberary(New Delhi:Universal book stall,19820 pg no-24
57 The Americans and Its People(new York;HarperCollins Publishers,1989)pg no-181


The Magna Carta is considered as the foundation of liberty in modern times. It is often
believed that it embodies the principle against arbitrary and unjust governance. This stems
from the fact that the barons had exhorted the stamp of approval from King John at
Runnymede. However, the importance of Magna Carta nevertheless lies in the fact that it
became the basis for establishment of the constitutional principle that the power of the King
may be limited. The Magna Carta was later represented as an event that had brought a King
to order, not just by the feudal barons but by the community of the land under the barons.
The process of transfer of power to the community at large was seen as having begum at
Runnymede. Some of the principles in the Magna Carta are vague and ambiguous which has
given it scope for interpretation and further reinterpretation according to the needs of the
times. Although as a feudal document in 1215 free men did not have the same connotation
as it does today, reference to such entities enabled revolutionaries in later times to rely on it
and justify their cause.
The Magna Carta was relied upon during the power-struggle between the Parliament and
Charles I in 1641 in the English Revolution. This was when Edward Coke interpreted the
various articles of the Magna Carta and established that it embodied the rules of trial by jury
and rule of law among many others. The Magna Carta was used by the American


revolutionaries in the war of independence and the American Bill of Rights, 1791 also claims
to have its roots in this thirteenth century document. The importance and relevance of the
Magna Carta today can be seen in the fact that its values have been upheld as inalienable
natural rights, starting in the 1770s.
The thirteen colonies along the eastern coast of America had enjoyed a great amount of
independence because of the involvement of the British in Continental wars and the great
distance that had made communication a problem. The principle of salutary neglect had
allowed the colonists to establish self-governing institutions modeled on the institutions in
England. The colonists considered themselves as equals of the British subjects born within
the realm of Britain. However, those in England thought of the colonists as their inferiors
whose main role was to provide them with raw materials and import the manufactured goods
from England.
The change in policies of England caused disturbances in the institutions that the colonists
had already established. The spate of laws that the British Parliament enacted as the imperial
Parliament in order to tax the colonies met with immense resistance since the colonists felt
that it was an attempt to commit them to political slavery after the many years of selfgovernment that they had enjoyed as British subjects. They claimed that the provincial
assemblies had the same rights and powers as the English Parliament and rejected the idea of
virtual representation. Relying on the British precedents, mainly the Magna Carta, the
British Constitution and the common law, the colonists claimed that they could not be taxed
without being represented in the legislature that sought to raise revenue by taxing them. They
argued that as British subjects they had the right to trial by jury and the principle of rule of
law had been violated by King George III by arbitrary imposition if taxes on the colonies.
The actions of the colonists compelled the Parliament to repeal several Acts that had been
passed to tax the colonies. The growing tension between the colonies and the Crown were
expressed in the Boston Tea Party and the Boston Massacre among several other incidents.
The Continental Congress was formed to address these issues in 1774. The delegates from the
various colonies continues to reiterate the alliance with England but at the same time there
was an unequivocal statement that this alliance was only loose in character and the colonists
had the right to govern themselves and did not need the strangers that the British sent to
govern them.


Reliance on Cokes interpretation of the Magna Carta was prominent during this period.
However, the colonists ignored the fact that Coke had merely created a myth of the Charter of
Liberties. Although he had firmly believed in the limitation of the powers of the monarch, he
had also considered the colonists to be inferior to the British-born subjects and common law
application was to be restricted to the English realm. The colonists ignored this irony in his
writings and instead the historiography of the time represented Coke as an advocate for
liberties for all. Through this paper the researcher has sought to establish the inherent
contradictions that arise from the reliance upon the Magna Carta during the American
Revolution. This is because the Magna Carta was a grant of rights by the King while the
American philosophy has privileged man-over-government implying that the people give the
government powers through the social contract and not the other way around.


Amy Dunn Taylor, Democaracys Caretakers, Freedoms Trustees, 38-APR Houlaw

6 (2001)


Bernard H. Siegan, Protecting Economic Liberties, 6 Chapter 43(2003).


Clinton Rossiter, The Political Theory of the American Revolution in John P. Roche
ed. Origins of American Political Thought(Calcutta: Scientific Book Agency,1967)


Daniel J. Hulsebosch, The Ancient Constitution and the Expanding Empire: Sir
Edward Cokes British Jurisprudence, Michael Kent Curtis, Historical Linguistics,
Inkblots and Life After, 78NCLR 1071(2000)


Thomas R. Phillips, The Constitutional Right to a Remedy, 78 NYULR