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«TE WIREMU, TE PUHIPI, HE WAKAPUTANGA ME TE TIRITI HENRY WILLIAMS, JAMES BUSBY, A DECLARATION AND THE TREATY A report commissioned by the Waitangi ...»

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281 Holt, Magna Carta, pp 343-344; Taswell-Langmead, English Constitutional History, pp 97-98.

282 Holt, Magna Carta, pp 449-450; Taswell-Langmead, English Constitutional History, p 74.

283 Holt, Magna Carta, p 300.

284 It was alone confirmed 37 times between the first year of Henry III’s reign (1216) and the second year of Henry VI ‘s reign (1421), Taswell-Langmead, English Constitutional History, p 108.

96 Magna Charta in 17th to 19th Century Discourse The Principle of Trusteeship In his speech to the Commons supporting Charles James Fox’s India bill in 1783, Edmund Burke articulated what came to be regarded as the principle of trusteeship in the British Empire.285 He

argued that:

all political power which is set over men, and…all privilege claimed or exercised in exclusion of them, being wholly artificial, and for so much, a derogation from the natural equality of mankind at large, ought to be some way or other exercised ultimately for their benefit.

According to Burke, political power and commercial monopoly were not natural rights – they were ‘artificial’ ones – and as such conferred obligations on those who exercised these powers to do so in the interests of those subject to them. Hence, the privileges exercised by the East India Company in India, which were originally derived from Crown charter, were ‘in the strictest sense a trust’: ‘and it is of the very essence of every trust to be rendered accountable; and even totally to cease, when it substantially varies from the purposes for which alone it could have a lawful existence’. Parliament had both the right and the duty, therefore, to supervise the exercise of the Company’s powers, and if they were abused, dissolve this delegated trust. Parliament was the ultimate trustee of Indian interests. This was the principle of trusteeship.

Fox’s bill proposed a commission to control the political governance of India. If Indian governance was appropriately supervised the rights of the Indian people would be protected.

Burke contrasted the charter of the East India Company with the ‘great charter’ (or Magna Charta), which truly established the ‘rights of men, that is to say, the natural rights of mankind’.

Such great charters were ‘express covenants’ which ‘defined and secured’ these natural rights ‘against chicane, against power, and [against] authority’. Not only were these documents protections against arbitrary power, but ‘this formal recognition, by the sovereign power, of an 285 Burke, ‘Speech on Fox’s East India Bill’, in Canavan, ed, Select Works of Edmund Burke.

97 original right in the subject, can never be subverted, but by rooting up the holding radical principles of government, and even of society itself’. Hence, government and society would crumble if these rights were not upheld. Magna Charta was ‘a charter to restrain power, and to destroy monopoly’. The Company’s charter, in contrast, was ‘a charter to establish monopoly, and to create power’.

The Magna Charta thus acted (theoretically at least) to limit or restrain the power of the Crown.

This was not the end of Burke’s history lesson to the Commons. There were other documents of constitutional significance that protected the subject’s natural rights. Fox’s bill and its associated

bills, said Burke, were ‘intended to form the Magna Charta of Hindostan’:

Whatever the treaty of Westphalia [1648] is to the liberty of the princes and free cities of the [Holy Roman] empire, and to the three religions there professed—Whatever the great charter [Magna Charta, 1215] the statute of tallage [1297], the petition of right [1628], and the declaration of right [1688], are to Great Britain, these bills are to the people of India.286 The Treaty of Westphalia ended the Thirty Years’ War in the Holy Roman Empire and legally established the three religions of Calvinism, Catholicism, and Lutheranism. This reference demonstrates that Burke’s thinking was not insular and that he conceived of civil liberties in terms of polities with varying denominational identities. In the ‘statue of tallage’ the English king renounced for himself and his heirs the right to levy any general tax (tallage) without the consent of the estates of his whole kingdom.287 In the Petition of Right 1628, Parliament complained of a series of breaches of law and asserted the subject’s right not to be subjected to arbitrary imprisonment and taxation without parliamentary consent. The petition also prohibited the use of martial law and the billeting of soldiers on private citizens against their will. Charles I was forced to assent, insisting that the petition merely confirmed established liberties rather than creating new ones. The Declaration of Right(s) accompanied the English crown offered to William and Mary in 1689. It pledged the monarchs to observe laws passed by Parliament (in 286 Burke may have assumed a kind of direct rule in India that did not exist until after the Indian Mutiny (1857-58).

Prior to this the British Parliament only supervised East India Company governance of India, via the Board of Control.

287 Only in later centuries was this document called a ‘statute’.

98 effect making Parliament the supreme legislator) and prohibited Catholicism in the monarchy.

The Declaration was incorporated within the Bill of Rights 1689, which ratified the Revolution settlement with William and Mary, making them joint monarchs (as William III and Mary II) of England.288





The Language of Liberty

Burke’s thumbnail sketch of English constitutional history also comprised the key building blocks of the seventeenth to nineteenth centuries’ ‘language of liberty’. In this discourse, the Magna Charta was the foundation stone. The 1628 Petition called it ‘The Great Charter of the Liberties of England’.289 Together, the Magna Carta, the Petition of Right and the Bill of Rights were regarded as the fundamental covenants between Crown and nation. In the words of one notable they were ‘the Bible of the English Constitution’.290 Prominent in this chain of constitutional compacts were the principles of Parliamentary consent to taxation, freedom from arbitrary imprisonment, and the security of person and property generally from arbitrary government.

Sir Edward Coke, an articulate defender of the common law against the royal prerogative, argued in the Commons that ‘Magna Carta is such a fellow that he will have no sovereign’. He made this statement in response to the House of Lord’s attempt to attach a clause to the Petition of Right referring to the ‘sovereign power’ of Charles I.291 The House of Commons firmly rejected this amendment as nullifying the effect of the Petition. Coke relied on the rights confirmed in

Magna Charta and other ‘statutes’:

I know that [the royal] prerogative is part of the law, but sovereign power is no parliamentary word. In my opinion it weakens Magna Carta, and all our statutes; for they 288 Burke, ‘Speech on Fox’s East India Bill’, in F Canavan, ed, Select Works of Edmund Burke (notes); C Haigh, ed, The Cambridge Historical Encyclopedia of Great Britain and Ireland (London: Cambridge University Press, 1985), pp 200, 205.

289 Taswell-Langmead, English Constitutional History, pp 415-416.

290 Ibid, p 74 (Lord Chatham, William Pitt the elder).

291 The Lord’s amendment stated: ‘We present this our humble petition to your Majesty with the care not only of preserving our own liberties, but with due regard to leave entire that sovereign power wherewith your Majesty is trusted for the protection, safety, and happiness of the people’, ibid, p 413.

99 are absolute, without any saving of sovereign power; and shall we now add it, we shall weaken the foundation of law, and then the building must needs fall.

In Coke’s view, the law, embodied in Magna Charta, not the King, was sovereign. The King was subject to law. In making or proposing laws he was limited by this ‘absolute’ law. John Pym argued similarly that the ‘laws of England’ must prevail. He argued further that: ‘I know how to add “sovereign” to his [the king’s] person, but not to his power’. Pym thus made a distinction between the king as symbolically sovereign and the ‘power of the law’ as the fundamental legal sovereign. Alford likewise claimed that the amending clause would be granting a new ‘regal’ power rather than giving to the king ‘that [which] the law gives him, and no more’.292 For Coke, ‘Magna Carta’ was fundamental law. For Burke, it enshrined the ‘natural rights of mankind’. The expressions differed but the effect was the same: Magna Charta acted to restrain arbitrary power.293 Two Whig historians, James Mackintosh and Henry Hallam, contemporaries of Burke, both supported his elevation of the Great Charter in the early nineteenth century.

Mackintosh said that clauses 39 and 40 ‘clearly contained the habeas corpus and the trial by jury, the most effectual securities against oppression which the wisdom of man has hitherto been able to devise’. Hallam asserted that these were ‘the essential clauses’, being those that ‘protect the personal liberty and property of all freemen, by giving security from arbitrary imprisonment and arbitrary spoliation’.294 In another place Hallam characterised the Charter as the ‘keystone of English liberty’.295 In his India speech of 1783, Burke was used ‘the Magna Charta of Hindostan’ as a code phrase to incorporate the protection of Indians’ fundamental rights and liberties, as well as their local customs. An appropriately structured Indian bill would thus protect Indians in the same way as England’s series of constitutional compacts had protected the Englishman’s rights, liberties and local customs.296 292 Ibid, p 413.

293 It might be truer to say that it declared fundamental law, much as Burke conceived it as declaring natural rights.

Both formulations have the sense of relying on absolutes derived from natural or divine law. Coke’s exact words were: ‘It was declaratory of the principle grounds of the fundamental laws of England’. Ibid, p 104.

294 Ibid, pp 90-91 (Mackintosh, History of England, vol 1, (1831), pp 219-220; Hallam, Middle Ages, vol 2, (1818), p 327).

295 Ibid, p 104.

296 Burke refers to ‘the due observance of the natural and local [Indian] law’, Burke, ‘Speech on Fox’s East India Bill’, in F Canavan, ed, Select Works of Edmund Burke.

100 ‘Magna Charta’ symbolism in the late eighteenth and early nineteenth centuries influenced not just Whig statesmen and historians. Hannah More, the leading ‘publicist’ of the Evangelical Anglican or Clapham era (the 1790s to the 1830s), referred to Magna Charta as the English ‘palladium’, the ‘basis of our political security’.297 More’s reference to Magna Charta illustrates its prevalence as a general British cultural symbol.298 This is borne out by the use of Magna Charta in popular discourse surrounding the Queen Caroline affair of 1820-21. Many of the ‘middling and lower classes’, as Wilberforce referred to them,299 supported Caroline in her efforts to be crowned Queen against the opposition of her husband, the new King George IV, and Lord Liverpool’s Tory government. The popular agitation, involving labourers, artisans and thousands of women, defended the Queen’s constitutional rights against an oppressive and corrupt elite. ‘Caroline became Britannia – the embodiment of the nation. Her lost rights became the people’s lost rights’.300 In a pro-Caroline pamphlet entitled The Queen and Magna Carta; Or, the Thing that John signed, William Hone visually represented Magna Carta as surrounded by the laws of England, the revolutionary Cap of Liberty, a lion with a crown and a dog with a collar labelled ‘John Bull’. Some rhyming verse accompanied this image, which the verse referred to as ‘THE STANDARD, the RALLYING SIGN, round which every BRITON of HONOR will join’. These ‘Britons’ were to unite against the ‘RATS AND THE LEECHES’ (that is, the elite) who, if they were not expelled from the land, would ‘Destroy MAGNA CARTA, and then in its place Allow us like slaves to exist in disgrace’.301 Although this tract had radical or revolutionary elements (including the French Revolutionary ‘Cap of Liberty’) it expressed a more widespread popular belief in a constitution that despised 297 H More, The Works of Hannah More, vol 10 (London: Henry G Bohn, 1853), (http://books.google.com/books, 14 August 2009), p 30. Hilton, A Mad, Bad, and Dangerous People?, p 178, characterizes More as leading ‘publicist’.

298 More was using Magna Charta as a metaphor: just as Magna Charta was the original of all other English laws so the Gospels were the foundation to which Paul’s Epistles pointed, ibid, p 30.

299 R I Wilberforce and S Wilberforce, eds, The Correspondence of William Wilberforce, vol 2 (London: John Murray, 1840), (http://books.google.com/books, 14 August 2009), pp 442-443.

300 R McWilliam, Popular Politics in Nineteenth-Century England (London and New York: Routledge, 1998), p 8.

301 Ibid, pp 10-11.

101 despotism and embraced liberty.302 Magna Charta was a key symbol of this constitutional inheritance.

For constitutional reasons quite different from those of William Hone, William Wilberforce supported Queen Caroline. He wrote to the Anglican Rev Dean Pearson, in February 1821, that the Queen was prayed for in all the Dissenting and Methodist Chapels throughout the kingdom.



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