Talk given to The Journey,
Santa Fe, NM
We live in an age that makes truth pass for treason [and]… although I fall as a sacrifice unto the ---- Idols, suffer not idolatry to be established in this land. Bless thy people and save them. …. Stir up such as are faint. Direct those that are willing. Confirm those that waiver. Give wisdom and integrity unto all. Order all things so as they may most redound unto thine own glory. Grant that I may die glorifying thee for all thy mercies and that … thou hast permitted me to be singled out as witness of thy truth….”
Algernon Sidney from the scaffold, minutes before his death, December 7, 1683.
George Bush is fond of saying that we are in Iraq to fight for freedom, as if the law were no part of freedom, or as if freedom and the law were somehow two different slogans. He is like an ancient king of England praising the English Constitution and then stating to his people that under that constitution he had the absolute right to overrule the Parliament or the courts, or to establish his own courts. All these were considered by kings to be part of the royal prerogative, a special power of the sovereign to do as he or she thought right, to do what God commanded him or her to do. The royal prerogative trumped all the laws and it came from God and so no man could question it.
Now George Bush has issued something over 1200 signing paragraphs in which he has said that he will only enforce the will of the Congress, or rulings of the courts, to the extent that these do not impinge upon his rights and duties as commander in chief. The rights and duties of the commander in chief are plenary, he says, allowing him to nullify some laws and dispense with others.
And now the president is pushing an agreement with the Iraqis that says that American troops may enforce the law in Iraq, as if we were sovereign there, and the president does not understand at all the rights of habeas corpus, or the limitations on torture in our constitution, or the rights of assembly, or the rights to be free from unreasonable search and seizure, and not knowing any of the history of these, will establish the rule of law without them.
We chide him for that. But if we were to ask any ordinary American, “Where did these rights come from? And who paid their lives for these rights?” we would be apt to hear that they came from Thomas Jefferson, or from John Adams and that they are therefore sacred. Ask any American “What does the rule of law mean, really?” and he or she might say it means abiding by the constitution. But ask them why it is in the Constitution and he or she is apt to be as silent as George Bush.
And so today I want to take us back beyond Jefferson and Adams to the lives and times of those upon whom Jefferson and Adams and, of course, Thomas Paine, relied. I want to remember not the heroes of war; they are vastly overrated. I want to remember the lives of those who made sacred those principles of habeas corpus, and due process, and the limitations of the powers of princes. I want to remember men and women of whom we do not any longer hear, who devoted their whole lives and in some cases gave their lives. And while soldiers may be heroes, they also may not be, as well, and while lawyers may not be heroes, they may also be as well, and it is time to claim the true heroes, heroines of the rule of law, including lawyers, historians, playwrights, and protestants —in the true sense of that term—all of us may be protestants, on the road to democracy.
You have heard of the Magna Carta and how King John was forced to bend the knee to the barons of England who demanded that he no longer insist upon making war whenever he wished, wherever he wised, at times and places of his own choosing, against enemies of his own choosing. John was forever going off to fight and lose in France. France was his Iraq. All of England depends upon our holding and staying strong in France, he said. We might stay for as long as hundreds of years, he said.
It sounds familiar. Kings, or would-be kings, are apt to say the same thing, from century to century whether they be called kings or presidents.
In 1215, the barons said to John, enough. Before you tax us again, you will send to us the specific reasons for the tax forty days in advance. You will then meet with us. The king was thereupon forced to kneel to these demands and in that way two limitations on the royal power inched through the cold ice, like spring flowers breaking through a long winter, of widespread western tyranny.
The two principles were: Due process and the right of assembly. King John had replied to these demands: “Are you kidding?” But the barons, including one named William Marshall, Earl of Pembroke, said, “No, we are not kidding,” and John was forced to ink the page, a page of such great significance that it is under glass today in the British Museum for all of history to wonder at.
When King John died, only a year later, Pembroke became viceroy over the young son, and reaffirmed —in the stead of his new king— the rights of the barons to due process and assembly. And you wonder where the Fifth Amendment to the US Constitution came from, that is where it came from, from the courage of William Marshall, Earl of Pembroke, in 1215, and 1217. It was the courage to say that the royal prerogative, the right descended from God, was not greater than the demand of openness and fairness. And that demand did not arise gracefully out of the soil of Europe, did not occur anywhere else in Europe at that time, and in some places—as in Russia today—that demand has not yet been recognized. So do not go to bed without thanking your stars that somewhere in your history was an Earl of Pembroke who stood up to King John and said, “War no more, with your unlimited taxes, Your Grace. War no more without making a case for war and fie, on your direct connection to God.”
Almost 400 years later the crown had passed to Queen Elizabeth. We know her as the great queen, Gloriana, defender against the Spanish Armada, reconciler of Catholics and Protestants and you know in Elizabeth’s court royal power was absolute. Any courtier in her presence was to speak to her only on his knees, and if she glanced in your direction you were to drop to your knees. And what you may not know is of the persecutions of men like the protestant dissident, a certain Mr. Penry.
Penry was a zealous Puritan and he wrote, during Elizabeth’s time, petulant and scurrilous compositions complaining of the royal hierarchy.
After concealing himself for some years, Penry was seized, but since the statute against seditious words required that the criminal be indicted within a year of the offense he could not be tried for his writings. He was therefore, as the historian David Hume tells us, tried for some papers found in his pocket, as if he had with these hidden scraps scattered sedition. Taken to court, the Lord Keeper on behalf of the Queen ruled that Penry had insufficiently written—had only allowed—that her royal majesty had power to “establish” laws, but that Penry had not used the usual terms to “make, enact, decree, and ordain” laws that would imply her absolute authority. Treason, ruled the Lord Keeper.
Penry, for these papers in his pocket, was tried for sedition, condemned, and executed.
Penry had unfortunately not been indirect enough to do what others were doing at that time in poetry and theater. He might have lived longer if he had written as Shakespeare did, that death sits on the shoulders of any king and
Comes at the last and with a little pin
Bores through his [the king’s] castle wall, and farewell king!
Cover your heads and mock not flesh and blood
With solemn reverence: throw away respect,
Tradition, form and ceremonious duty,
For you have but mistook me all this while:
I live with bread like you, feel want,
Taste grief, need friends: subjected thus,
How can you say to me, I am a king?
So there was Shakespeare, and he is in the line of those who wrote of the flaws of kings, and undressed them, made them feel want, taste grief, need friends, and so while the myth of the royal prerogative was not challenged successfully by Penry, who wrote directly against it, it was being eaten away by the poet, who surrounded his doubts in drama. The lines I have quoted are from Richard the II, but there was also Richard III, and Coriolanus, and Henry VI, in three parts, and Hamlet and Julius Caesar, and all these undressed royalty, as Penry had not been able to do. So think of poets and playwrights in the line of those who gave to us principles of limits to royal power. And when you think of the Constitution think of the Amendments; the original body of the constitution —Articles I, II, and III—have the purpose of establishing a central power; this they do well. The protections against abuse of this power are largely in the Amendments. It is the amendments for which men like Shakespeare and Penry prepared the ground.
While Elizabeth was still alive, in 1600, the Earl of Essex, took his case beyond poetry and stepped into history for taking Shakespeare’s irreverent thoughts to the streets. Essex challenged Elizabeth head-on and wrote to her these magnificent lines.
Cannot princes err? Cannot subjects be wronged? Is earthly power infinite? Pardon me, my lady. Let those who twitter and bend the knee and take profit from princes show no sign of injury for they be cowards, but if any think that a prince’s power on earth is absolute, let that man, not I, be reprimanded, for only divine power is infinite and not even a prince is as yet absolutely divine!
Shortly after penning these lines, Essex, in anger and frustration, led a rebellion into the streets against the great queen, was captured and he, too, was executed. At the beginning of the 17th century, the royal prerogative would not yet be denied.
[If you want to hear a magnificent actor speak these lines as if history depended upon them, come see Mario Cabrera speak them in The Last Tudor. Essex gave his life for this sedition and it is he and others like him from whom Jefferson and Paine and Adams took their passion. Come see that passion through Mario Cabrera and you will believe what Jefferson and Adams believed.]
Elizabeth was, however, the last of the absolute monarchs. Her successor, James I of Scotland, tried to emulate her but met resistance and James’ son Charles ran headlong into a lawyer who knew the Magna Carta, and knew it better than the king. This lawyer was Sir Edward Coke, a tiger, a lion.
In 1621, Shakespeare’s folio had been printed and became available for all to read. We do not know if Coke read the folio, but if he did he would have known of Richard II’s reflection about kings:
I live with bread like you, feel want,
Taste grief, need friends: subjected thus,
How can you say to me, I am a king?
The king of Coke’s later life, Charles I, was doing his Iraq-like thing, like King John before him, warring on eternally in France. He was forever running out of money, because unlike George Bush, he thought he had to go to parliament for money and there was no off-budget system in place.
But then Charles did discover his own method to keep borrowed money coming in and thus to keep his wars going. He went to his wealthy middle class, his subjects who were merchants and shopkeepers and traders and landowners and said to them, “Lend me money.” Some of these loyally did as they were told, but many did not. These dissenters said, “This is not a loan, this is taxation, and you cannot tax us without consent of parliament.”
Whereupon the king replied, “I can indeed, ask you for a loan. It is my royal prerogative and it comes to you from God, through me.”
And they said, “You have got to be kidding.”
And he said to his county sheriffs, send them to jail, and keep them, for as long as it takes, months or years for all I care, until they loan me money.
Now Sir Edward Coke, by this time an old man, said to the king: “ Sire, even a king cannot put these men in jail upon royal command alone. They have a right to be brought before a court to ask the court to show them why—under the law—they are in jail and, sire, that is an ancient right.”
“I can put them in jail,” roared Charles in reply, “whether for a crime or for some other purpose that comes to me because I am king! And before you object, Sir Edward, beware the sharp sword of your king; I am sovereign here!”
Coke was claiming the rule of law, which is not the same as the rule of important people, or wealthy people, or politically powerful people, or even kings. Today we know that right to be brought to court and to be tried under the law to reside in the ancient writ of habeas corpus. The Magna Carta had said
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 [King John] proceed with force against him, or send others to do so, except by the lawful judgement [sic] of his equals or by the law of the land.
Now in 1628 Sir Edward Coke, lawyer, scholar, too old himself to worry about the probable early death that lay in wait for him for his impudence, rose in parliament and replied to the king: “Your Majesty, Magna Carta will be above all here in this house and Magna Carta shall have no sovereign!”
That’s the origin of habeas corpus—way back in 1215—and that is why the Constitution of the United States says that habeas corpus may not be suspended except in cases of invasion or rebellion. And this is the right that could not be taken away by a king because of war or money troubles or debts or fears of some foreign power. Habeas corpus could not be taken away by the royal prerogative.
Sir Edward did not win this battle with swords. He was an old man. He won this battle with knowledge of the law and Charles went on resisting that law and insisting upon the royal prerogative until finally civil war broke out in England, and in 1649 Charles lost that war and then the law was indeed enforced and the king was executed himself. But before the war, came knowledge of the law.
And that is what we mean when we say that the rule of law is not the personal rule of adventuresome kings with their adventuresome wars and unending taxation to finance these adventures. The rule of law does not hang on the judgment of a lawyer in the vice president’s office who reviews every piece of legislation to declare that the president will not obey such laws whenever, in his sole judgment, such laws might impair the plenary powers of the commander in chief.
Men and women of Santa Fe, we have been here before. As colonists we had the experience of the uncontrolled ruler with King Charles. We have had to discipline arrogant rulers in the past and we have insisted that it is basic to our national survival that no man, not any, is above the law, and therefore no man can be thrown in jail without the law, not even by the king or any man who acts like a king.
Thomas Jefferson wrote that all just power derives from the consent of the governed. It is in our Declaration of Independence and every school child has learned that phrase. But in 1683, King Charles II—son of the first Charles—did not agree. A famous soldier of the time, a writer and philosopher, Sir Algernon Sidney, decided to fight head on against the principle that the king’s authority was more important than the authority of the parliament. He went further. He said that not even parliament was the supreme authority. He said that God was not involved in the rule of law because no one on earth could speak for God.
As King Charles II—having learned nothing from the death of his father—became more and more insistent upon his royal prerogative, Sidney and others met secretly to consider and discuss the sources of power that did not come through the king. Some of Sidney’s colleagues then took a fateful step and plotted to kill the king.
The Rye House plot, as it was called, went awry, the plotters were apprehended and soon spies of the crown traced the case back to Algernon Sidney who had not been present at the scene, but who was implicated. Certain papers had been found in Sidney’s closet, or alleged to have been found in his closet. Sidney was arrested and charged with sedition, a capital crime.
The crown had only one witness, a stooge, a certain Lord Howard who had a reputation for scurrilous lies. Howard’s testimony obviously would be insufficient. Further, Sidney could not be convicted in the criminal courts because to prove sedition English law required two witnesses. To evade the operative law the king therefore created a special Ecclesiastical Court and tried Sidney with judges of his own choosing.
You wonder why we have a prohibition against unreasonable search and seizure in the fourth amendment to our constitution? Remember Algernon Sidney’s closet and Mr. Penry’s pocket; you will know what Thomas Paine knew, and Jefferson and Adams knew, and you will have an idea.
You wonder also why we have separation of powers —courts separated from the executive—in our constitution? Algernon Sidney is why. These judges, serving at the pleasure of the crown, tried and convicted Sidney in the king’s own court, outside the law, declared him treasonous and sentenced him to die. You wonder why today, we are suspicious of the president’s military courts, created by the congress to do the president’s bidding, serving at the president’s direction? Algernon Sidney is why.
Three weeks after his trial, Sidney was led to the scaffold. He stood, and I imagine him with his head high, shoulders straightened, gazing out at a crowd. Some unhappy witness recorded Sidney’s speech from the scaffold and we have it today.
“We are not bound to submit to absolute kingly power. Rather, true power rises from the consciences and judgment of the people, all the people, not only from kings,” he said.
Think upon it, he said, a king might be created by inheritance or criminal usurpation and has any person established on these thin grounds, the right to speak for God?
If you have wonder why we talk of these ancient cases, think of George W. Bush who has his power both by inheritance and by usurpation and who claims to talk more directly to God than to his earthly father.
Oh, men and women of Santa Fe; we have been here before.
Thomas Jefferson knew of Algernon Sidney. A college was founded, in 1776, that bore Algernon Sidney’s name, in Virginia, not far from Jefferson’s home. The college bears Sidney’s name still today. Sidney was a hero to the patriot Virginians. In the same year as the founding of the college, Jefferson would write that “all just powers derive from the consent of the governed.” He was claiming Sidney’s principle and Jefferson intended to build a nation upon that principle.
If all just power derives from the consent of the governed it follows that it does not derive from the unlimited powers of the commander in chief, such powers to be defined by him, directed by him, issued in orders from him, without consent of the congress or the courts or of the people. If power does not come from God to him, or through the commander’s powers, to him, it also of course also does not come from statements that are drafted by any counselor to Vice President Cheney.
In 1689, six years after Sidney’s death, America was a flourishing colony. The next king in the English succession after Charles II had been James II. James was Catholic and wanted to turn England back from Anglicanism to Catholicism. The law of England at that time prohibited Catholics from serving in government. James said, I will dispense with this law. He ordered the clergy in the Anglican Church to read from the pulpit his decision to appoint Catholics to positions in control of Anglicans. The king was planning the destruction of the Anglican Church. He ordered the Anglican clergy throughout the width and breadth of England to read his decision from their pulpits on two successive Sundays.
Seven Anglican bishops gathered in a room in London together with Archbishop of Canterbury. These seven agreed that they would not obey the king’s order that would foretell the destruction of their church. They would petition the king. They would ask him to change the order. They would not rebel, but they would petition for a change.
The seven bishops came to the king’s presence, obeisant, literally kneeling in front of him, to present their petition. They were not received well,
“This is a standard of rebellion!” exclaimed the angry king. “I will be obeyed. My declaration will be published [in all the churches] You are trumpeters of sedition! … God has given me the dispensing power and I will maintain it.”
You wonder where the constitutional right to petition for redress of grievances comes from? This is where it comes from.
Now all of England boiled like grease on a hot skillet. That evening the document which the bishops had put into the hands of the King appeared word for word in print, was laid on the tables of all the coffeehouses in London. Everywhere, writes Lord Macaulay, the people rose from their beds and came out to stop the hawkers of the petition and to purchase copies.
The king immediately convened a council to do his will and the council ordered the bishops be rounded up and imprisoned in the Tower of London. The brightest red robes in London were then collected in boats and rowed down the Thames River to the Tower. But to the King’s dismay, half the citizenry of the city came to the shores of the river and cheered the bishops on.
Any prominent lawyer at this time would have had a very difficult decision to make. He could come to the defense of the laws of parliament or the defense of royal power. He could stand with Sir Edward Coke and enforce Magna Carta or he could look out for his personal career that could only truly be assured with the approval of the crown. He could decide for the memory of Algernon Sidney, holding that power came from the people or he could seek favor at court, as most lawyers had done down through time.
One of the greatest lawyers in England, a certain Williams, a former speaker in the parliament, was seduced by the king and agreed to represent the crown against the bishops. After a long career representing the people, he went over to the other side.
But six other lawyers, including now a young legal scholar named Somers, searched their souls and saw in the bishops’ case the fundamental principle that must underlie the rule of law; they saw that if the king could suspend with, or dispense with, the laws, at a time and place of his own choosing, there was no point to having a parliament; no point to even having courts, and no safety for the beliefs or the persons of any man.
In the end, it was young Somers who argued most brilliantly before the court, a court cowering under threat from the king himself. Somers argued to judges who surely did not want be there at that moment, who might rather have been safer and doing things of lesser import, outside the gaze of the people. Somers argued that the law mattered, that the statutes of Edward III, mattered, that before that the Magna Carta mattered, and that these contained a promise to prosecute no man except under the law, and if this was lost England would be in chaos forever and in chaos be effectively without government, under a tyranny and not a constitution.
Unexpectedly and ourageously, the cowering judges ruled in Somer’s favor and freed the bishops from the Tower of London, acquitted them of all charges. London erupted in a city-wide celebration and dancing in the streets. The dancing spread throughout the land and King James was done.
Within a year he had scuttled from the palace and hurried, disguised, and buried under the robes of a peasant to a skiff awaiting on the River Thames. And when the new kings, William and Mary, were brought to the throne, they were forced to agree to these principles:
*That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal.
*That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal;
Now you know why the Constitution of the United States requires that the president take an oath of office to “faithfully execute” the laws. Power corrupts and the framers all knew that. Lord Acton had said that absolute power corrupts absolutely. The president would have to swear not to dispense with or suspend the laws.
What American today cannot see that when the president of the United States, be he republican or democrat, issues a signing statement that he will only enforce the laws according to his own lights or to the extent where such law will not encroach upon his prerogative, whether it be his prerogative to control the EPA or to kill dolphins off the coast of California, or to spend money for his wars but not for education as commanded by Congress, when the president insists that he will himself determine when he is bound by law and when he shall not be bound by law, who of us cannot see that we are returning to the crisis of the bishops, or of Sidney or of Coke and which Thomas Paine, Jefferson and Madison sought to assure would never happen again? And who of us cannot see, when we remember William Marshall and Penry and Essex and Coke and Sidney and Somers that we who believe in the rule of law have a story to tell of our own? Yes, we have our story, and we will tell it now, until the rights of princes are curtailed and the rule of law is restored.