Rules by Which a Great Empire May Be Reduced to a Small One, Part VI: Memory, contd.

          Among the other distinctly English liberties that Franklin saw fit to explicitly name in Rules was the core legal concept of Habeas Corpus. Essentially a guarantee against unwarranted detention, Habeas Corpus (or “the Great Writ”) remains among the most fundamental rights inherent in Common Law jurisprudence. Its exact provenance is somewhat vague, owing to its extreme age, but its existence as a legal protection within the English judicial system dates back at least as far as the 13th century. Indeed, no less monumental a charter than the Magna Carta (1215) mandated that, “No freeman shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor will we send upon him except upon the lawful judgement of his peers or the law of the land.” Considering that the rebellious barons who forced the Magna Carta on John I claimed they were attempting to reassert rights and guarantees that had been lost following the Norman Invasion in 1066, it seems a safe conclusion that origins of Habeas Corpus go back considerably further. At various points during the proceeding centuries of English history the Great Writ was eroded, suspended, or was subject to renewed guarantees. The last word on Habeas Corpus as of the 1770s, from a legal standpoint, was the aptly-named Habeas Corpus Act (1679) passed by the third parliament of Charles II’s reign.

          Said act was introduced and supported by members of the Country Party who wished to exclude James, Duke of York, brother and heir of Charles II, from the line of succession. In the event that their efforts failed and James ascended to the throne (which he ultimately did in 1685), the so-called Exclusionists feared that the new king would drag the monarchy back toward absolutism by ruling in a generally arbitrary fashion. Whether there was any truth to this notion, particularly given James’ ardent support for religious toleration during his time as proprietor of the Province of New York, is neither here nor there. The point is that certain members of the Country Party, who as aforementioned already distrusted the contemporary political and economic status quo, believed that Catholic James taking the throne represented an imminent threat to the constitutional style of government embraced in Britain in the aftermath of the English Civil War. One of their parliamentary leaders, the Earl of Shaftsbury, accordingly led an effort to more clearly and definitely enshrine the writ of Habeas Corpus in contemporary British law. The resulting Act of Parliament, which passed by a slim margin in the House of Lords of fifty-seven to fifty five, mandated that, except in cases of treason or felony, all prisoners or those acting on their behalf possessed the right to challenge their arrest by submitting a petition to the appropriate authorities. Such a petition required an answer no later than three days after it was submitted, and the requesting prisoner was then required to be brought before the judge or court that first authorised their arrest in order that their case be reviewed and their detention either upheld or dismissed. Jailers were also forbidden by the act from moving their prisoners from one location to another in order to avoid the enforcement of the writ, and a schedule of fines was included in case of disobedience.

          The reason that any of this matters to the present conversation (as no doubt you were asking yourself) is because of what it says about the state of British law and in particular the writ of Habeas Corpus at the end of the 18^th century. By the time Benjamin Franklin wrote Rules in 1773, or even by the time of the Stamp Act (1765) and the beginning of the imperial crisis between the American colonies and the British Crown, a strong guarantee of one of English law’s most fundamental rights had been on the books for almost a century. That the next piece of legislation concerning the Great Writ was not passed until 1803 would seem to further indicate that the provisions of the 1679 effort were considered to be sufficiently thorough, and proved durable enough to survive the brief tumult of the Glorious Revolution unscathed or unaltered. Furthermore, it should not have gone unnoticed that the sponsors of the 1679 Act were members of the abovementioned Country Party. Self-appointed defenders of liberty and enemies of corruption, the Country Party and their philosophy were lionized among the population of British North America precisely because of their strong stand in support of traditional rights. In all it would thus seem far from unusual for Franklin to have cited Habeas Corpus in his satiric Rules as among his fellow colonists’ most dearly-held individual liberties.

          It’s important to remember that even as late as the 1770s and the eve of the American Revolution there were still many people living in the Thirteen Colonies, a good number of whom ultimately sided against the Crown, who still regarded themselves with a great deal of pride as being English men and women. Not every colonist felt this sense of identity with equal strength, it must be said, but to ignore it or to imagine that the later American sense of self and national purpose owed nothing to a series of strong English antecedents would quite simply be wrong. That being said, the Great Writ of Habeas Corpus was almost certainly at the core of the colonists’ shared, if not always consistently felt, sense of Englishness. It is possible that the colonists looked upon it a little differently than their cousins across the Atlantic, however. Habeas Corpus had been, after all, one of the legal concepts championed by a group of statesmen, the Country Party, whose political and philosophical influence in the colonies was many times what had it been in Britain. This association between said writ and the Country Whigs, of whom American critics of perceived British tyranny considered themselves the ideological descendants, could thus be thought of as a bridge by which distinctly English values were transformed into distinctly American ones. Accordingly, though Habeas Corpus was, and is, a concept deeply rooted in English history and legal tradition, it should hardly be thought of as contradictory for Benjamin Franklin to have regarded it as also being absolutely fundamental to his fellow American colonists’ own emerging sense of political and philosophical identity.

          The last distinctly English individual liberty that Franklin cited in step ten of Rules about which a few words ought to be said is the, “Right of Trial by a Jury of our Neighbours.” Like Habeas Corpus, trial by jury is a concept whose origins in English history are somewhat vague. There is no single document, no statute one can point to as the unequivocal inception of jury trials, though a fair bit of scholarship exists that has attempted to trace the lineage of the concept. The general understanding of academia at this point is that the notion of trial by jury accreted slowly over a period of centuries, from an offshoot of the Scandinavian thing (a kind of assembly presided over by legal authorities known as lawspeakers), to the Anglo-Saxon assembly of thegns (minor nobles), to the system set up by Henry II (1133-1189) as a means of arbitrating local land disputes. The same passage of the 1215 Magna Carta cited above as evidence of an early understanding of Habeas Corpus likewise speaks to the importance attached in that period in English history to trial by jury. “No freeman shall be taken or imprisoned,” it stated, “or exiled or in any way destroyed […] except upon the lawful judgement of his peers or the law of the land.” While “the law of the land” speaks to the Great Writ, “the lawful judgement of his peers” is a clear reference to jury trial.

          So important was this specific passage of the Magna Carta and the legal principle contained therein to English political and legal identity that it was cited as justification over four hundred years later when the Parliament of Great Britain passed legislation abolishing the practice of the Star Chamber.  So called because it was physically located in a richly decorated room whose ceiling was bedecked with gold stars on a blue backdrop, this legal body was composed of Privy Councillors and Common Law judges and functioned as both a high court of appeal as well as a court of equity (referring to morals or legal norms). The Chambers was initially convened during the Tudor era as a means of ensuring justice was meted out even to those often considered powerful or influential enough to evade the influence of lower courts. Over time, however, it became an instrument of oppression due to its members’ nakedly political motivations and the arbitrary application of their equity court prerogatives (mainly by handing down punishments for offences which were not illegal but which they considered to be improper or immoral). The Act of Parliament that finally abolished the Star Chamber in 1641 made explicit reference to the aforementioned passage from the Magna Carta, with its reference to both Habeas Corpus and trial by jury. “No freeman shall be taken or imprisoned,” it stated, “or disseised of his freehold or liberties, or free customs, or be outlawed or exiled or otherwise destroyed […] but by lawful judgment of his peers, or by the law of the land [.]”

          That the Star Chamber was abolished by an Act of Parliament and that the specific reasoning cited above was given are important to the present discussion for at least two reasons. The first is that it represents an instance of one arm of the English government checking or curtailing the power of another. Granted it was a long time coming, the Star Chamber having been in use for over a century at the time of its abolition. Nonetheless, the ability of a government to maintain a sense of equilibrium among its constituent parts in a manner such as this is precisely what English Whigs and republican-sympathizers like Thomas Paine and Benjamin Franklin believed was central to successful governments staving off corruption and combating the emergence of tyranny. The second reason that the abolition of the Star Chamber is worthy of discussion under the present circumstances is that the authority being curtailed, belonging to the judicial branch of the contemporary English government, was so limited because it was seen to be in conflict with, among other things, the ancient right of trial by jury. This seems a clear enough demonstration that in 1641, on the eve of perhaps the most tumultuous century-and-a-half in English history, certain fundamental political and legal norms had become sufficiently ingrained as to successfully circumscribe the ability of government at the highest level to successfully project its power.

          Though the act eliminating the Star Chamber remains among the most important defences of trial by jury in English legal history, it was not, as of 1773, the most important or the most recent. As discussed previously, the Glorious Revolution of 1688 and the subsequent passage of a Bill of Rights in 1689 represent between them a fundamental turning point in the history of English government away from absolutism and towards constitutionalism. These latter events were particularly significant among the residents of the Thirteen Colonies, in no small part due to their own historical struggles with distant governments that seemed unresponsive or unsympathetic and their desire for the restoration of what they regarded as their accustomed rights and privileges. Bearing this in mind it is worth noting that one of the accusations levelled at the departed James II in said Bill of Rights was that policies put in place under his leadership led to the service of incompetent people on trial juries. In fact the Bill stated specifically that said persons were “partial corrupt and unqualified,” and added that certain others who had served as jurors during treason trials had also not been freeholders. These accusations constituted a violation of the underlying principle of the right to trial by jury because of the way they potentially biased the outcome of a prospective trial, because they meddled with the ability of an accused person to be judged by a fairly-selected assembly of their peers, and because they potentially placed the fate of said accused in the hands of those who had not been chosen for their impartiality. Any one of these could have fairly been considered an unpardonable desecration of a long-established right; combined they served to reinforce the unsuitability of James II to continue his reign, so out of step was he with English political and legal culture.         

          In order to repair the damage they claimed James II had wrought upon the England’s green and pleasant land, the authors of the Bill of Rights stated quite simply in the text of the same, “That jurors ought to be duly impanelled and returned, and jurors which pass upon men in trials for high treason ought to be freeholders.” That they felt no need to delve into further detail is telling. Had the concept of trial by jury been, in 1689, a novel one it would doubtless have seemed necessary to explain at length the how and why of its unbiased and impartial operation. Because trial by jury had existed in a form recognizable to the 17^th-century English mindset since at least the 13^th century, however, and because it had been challenged and emerged triumphant as recently as the 1640s no such explanation was required. The Whigs that supported the passage of the Bill of Rights, as well as those in later decades and centuries that cited its importance, understood that document’s purpose as being conservative rather than innovative. In light of the perceived abuses of James II and the sudden change in government represented by his overthrow, a guarantee of the fundamental, customary, inherited rights of the English people was called. This guarantee was the Bill of Rights of 1689, one of the most important documents comprising the unwritten British constitution and one of the prime exemplars of natural rights cited by American critics of British administrative abuses in the 1760s and 1770s.

          See what I did there?

          Hopefully my lengthy (so very lengthy) diatribe concerning the origins and late-17^th century trials and tribulations of the right of trial by jury in England has succeeded in emphasizing just how important said right was, and is, to the English sense of political identity. Provided, of course, it hasn’t rendered you completely and perhaps fatally unconscious. The need to preserve trial by jury effectively led to the defeat the Star Chamber, and helped bring down one king and make another. How this relates to Benjamin Franklin and his terribly humorous but no less important Rules is fairly straightforward. Trial by jury was important to the English sense of political identity, clearly. And at the very root of the pre-Revolutionary American identity was a strong sense of Englishness and a respect and admiration for traditional English liberties. Thus, the right of trial by jury, even as late as 1773, was as fundamental to the self-identification and political consciousness of colonial Americans as it was to their cousins across the Atlantic.

          In fact the abuse said colonists suffered at the hands of incompetent, callous and self-interested British ministers over the course of the late-18^th century, rather than disabuse them of any affection for all matters English, arguably strengthened their attachment to such core values as Habeas Corpus and trial by jury. Just as 13^th-century barons who felt ill-used by the policies of King John had sought refuge in the reassertion of what they regarded as their traditional rights, and just as 17^th-centruy Whigs sought to guard against the erosion of the same by helping usher in and then reinforcing a government whose respect for traditional liberties was more in line with their own, so late-18^th century colonial Americans held such rights as Habeas Corpus and trial by jury as an unassailable bastion against the relentless, creeping influence of English ministerial and Parliamentary overreach. And by effectively re-enacting the efforts of their forefathers and reinforcing their shared attachment to the same set of values, colonial Americans began to transform themselves into a new and different people with a destiny all their own.