Robert J. Brink, The Daily Record Newswire
BOSTON, MA — The Museum of Fine Arts in Boston has three enormous banners hanging above its monumental entrance on Huntington Avenue. The first and third banners together read “Magna Carta.” They frame John Singleton Copley’s defining portrait of a steely-eyed Samuel Adams defiantly pointing to the 1691 Charter of Massachusetts Bay on the eve of the American Revolution.
It’s strange that a document of such overwhelming historic significance as the Magna Carta is so underwhelming on first sight. Its Medieval Latin script has no commanding swirls or enchanting embellishments. It’s so condensed that the scrivener must have had hand cramp transcribing its 63 clauses, including those on due process and trial by jury. Like other legal documents, it’s dull looking.
Yet viewing this unpretentious instrument inspires the imagination. Its creases are visibly worn — evidence of folding and unfolding umpteen times — suggesting a story that connects the Magna Carta to the portrait of Sam Adams, the exhibit’s more eye-catching co-star.
Signed at Runnymede on June 15, 1215, the Magna Carta set binding rules extracted from King John by his barons. It does not say “any baron,” but inexplicably uses the universally liberating term “any free man.” That fortuitous choice of words helped transform it into a sacred symbol of freedom for all — and for all generations.
In their classic 1895 “Constitutional History of English Law,” Sir Frederick Pollock and Frederic William Maitland sum up the Magna Carta’s universal significance simply: “[I]t means this: that the king is and shall be below the law.”
The fact that rights were reduced to writing did not automatically guarantee them. The story of English constitutional history is the centuries-long struggle to subdue the monarchy; an epic and episodic struggle that eventually made Parliament supreme.
When viewing the visible wear and tear along the folds of the Magna Carta, one easily can imagine they correspond to the unfolding of English constitutional history. The copy on display seems to show the battle scars of a document that defenders of liberty used as both intellectual sword and shield.
The MFA exhibit mentions 23 examples where the Magna Carta was reinterpreted during the 13th century alone. One wonders how many more times throughout English history did the English barons, and others who would possess the original 40 or so copies, point to their copies of the 1215 Magna Carta as proof that their freedoms were guaranteed.
When looking at its frayed folds one is reminded of Sen. Sam Ervin pointing to his own dog-eared copy of the U.S. Constitution as evidence during the Watergate hearings that our constitutional rights trumped President Nixon’s claims of executive privilege.
Ervin’s showmanship was a modern variation on an ancient theme transplanted to early America. The notion that our rights are embedded in parchment and paper took root in the New World’s earliest formative and founding documents. Our charter of 1629, granted by King Charles in the name of the governor and Company of Massachusetts Bay in New England, is such an example.
As luck would have it, unlike other similar charters, the Massachusetts Bay Charter had no requirement that the trading company incorporated by it be operated from England.
Gov. John Winthrop was sly. He seized the charter, and in 1630 surreptitiously removed it to New England, thereby also removing the company — and colony — from old England’s oversight.
A 1635 judgment from the King’s Bench commanding “the said liberties should be taken and seized into the king’s hands” shows how documents and rights were inseparably seen as one and the same. In 1638, the English authorities dispatched a ship with a writ directing that the charter be returned “hither by return of the ship in which the order is conveyed.”
Wily as ever, Winthrop refused. The colonists kept their rights because they kept their charter. Massachusetts Bay in New England became, as Samuel Eliot Morison described, a “somewhat highhanded government, independent of England in all save name.”
To the modern reader, this may be ancient history. But to members of the revolutionary generation, the freedoms they traced to the earliest settlers were remembered as part of their constitutional heritage. “I always consider the settlement of America with Reverence and Wonder,” John Adams wrote in 1765.
It’s a long story, but the Massachusetts Bay Charter of 1629 was eventually replaced in 1691 with a less permissive one. Purists preferred the greater freedoms once enjoyed under the original charter of 1629, but those who had grown up under the 1691 replacement revered their remaining “chartered rights,” especially as many revolutionary conflicts were really contests over the interpretation of the charter. In the minds of the colonists, the 1691 charter was morphing into their own Magna Carta.
That is presumably why Copley’s celebrated portrait of Sam Adams plays such a prominent role in the MFA’s exhibit. It shows a confrontational Adams staring down royal Gov. Thomas Hutchinson the day after the Boston Massacre in 1770. Adams is demanding the expulsion of the British troops from Boston.
Other than his defiant glare, what authority does Adams have for making that demand? The index finger on Adams’ left hand is pointedly thrust toward the Massachusetts Charter of 1691. John Hancock hung the rebellious portrait in his home, undoubtedly as an example of a resolve worth emulating as the conflict between the crown and the colony became increasingly confrontational.
In the war of words, Massachusetts Bay’s charter became conveniently conflated with the English Magna Carta. With respect to the English document, a “ch” was slipped into the spelling of the former “carta.” And “Magna” was added as an ennobling new modifier for the Massachusetts Bay charter.
Thus, “Magna Charter” became a term equating both documents as synonymous embodiments of fundamental rights worth fighting for.
In retribution for the Boston Tea Party, in 1774 the king and Parliament passed the Coercive Acts that in many ways nullified the 1691 charter and the colonists’ time-honored rights of town government.
“We must fight,” Joseph Hawley wrote in the summer of 1774 from western Massachusetts. “It is easy to demonstrate” that that the Coercive Acts “will soon annihilate every thing of value in the charter [and] introduce perfect despotism … .”
Months before Lexington and Concord, thousands of minutemen amassed with townspeople to successfully close down the royal court system throughout the colony. Perhaps exaggerated, one newspaper estimated that 40,000 people participated in the remarkable and, surprisingly, little-celebrated act of mass defiance that started in the western counties in August 1774, and quickly spread to every corner of the colony.
The conservative North Shore allowed sessions in Ipswich and Newburyport, provided that the royal judges pretended that the Coercive Acts had not been enacted.
On the South Shore, after 4,000 people closed sittings in Plymouth, they tried to move Plymouth Rock from the harbor to the courthouse. As one account noted, relocating the rock on which their “fore-fathers first landed” proved “impractical, as after they had dug it up, they found it to weigh ten tons at least.”
None of these efforts was met with resistance. The British retreated to Boston.
The closing of the courts was of grave concern to John Adams and others. “Not a Court of Justice, has sat Since the Month of September,” Adams wrote as the colony fell into chaos. “Not a Debt can be recovered, nor a Trespass rebuffed nor a Criminal of any Kind, brought to Punishment.”
Closing of the courts choked government throughout the colony. Adams feared civil war.
Ad hoc provincial congresses representative of the towns managed to keep law and order, but they acted without any underlying basis of authority.
Leaders of the colony appealed to the Continental Congress for guidance. Not ready to authorize Massachusetts to erect an entirely new form of government, those in Philadelphia recommended that Massachusetts resuscitate government under the royal 1691 charter. But to do so required the pretense that the council would be a suitable substitute for the erstwhile royal governor.
Although suspect, Massachusetts followed that expedient advice. It held elections and made appointments, including installing John Adams as chief justice of a court system that was in complete collapse.
The MFA’s exhibit shows an engraving from the great propagandist, Paul Revere, which became a popular image printed on various public documents in the new government. The image justified not only the recent colony-wide closing of the royal courts but also the revolutionary battles still to come.
Showing a minuteman brandishing a sword in one hand and the other grasping a copy of the “Magna Charta,” the engraving echoes John Winthrop’s and Sam Adams’ conviction that our rights are indivisible from our founding documents. The inscription on the new government’s 40-shilling note states that the sword is “Lifted in defense of American Liberty.”
The Massachusetts Bay Charter of 1691 and the English Magna Carta were once again seen by some as two sides of the same coin. “Perhaps,” an approving Sam Adams wrote, the new government “may be permanent.”
Revere’s engraving also decorated the new government’s official seal. Yet, it is noteworthy that while other iterations of Revere’s engraving are on display at the MFA, the official seal is conspicuously not. Perhaps it is not a surprise.
The same revolutionaries in western Massachusetts who inspired the colony-wide revolt against the king’s courts were indignant that a charter granted by an English king would serve as the foundation for people fighting to free themselves from England. Given that the Coercive Acts invalidated the 1691 charter, the new government founded on it was illegitimate.
This group would become known as the Berkshire Constitutionalists. To them, the 1691 Mass Bay Charta was no English Magna Carta. Their intransigence and insistence that the people of Massachusetts develop their own indigenous governing document played a pivotal role in the development of the Massachusetts Constitution of 1780, which is now the oldest functioning constitution in the world and, alongside the Magna Carta, an inspiring model for free peoples around the globe.
But that is another story.
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Robert J. Brink is executive director of the Social Law Library in Boston.
