The most enduring legacy of Magna Carta is, of course, due process. The document mandated that no man can be imprisoned, stripped of his possessions, or exiled "except by the lawful judgment of his equals or by the law of the land." Magna Carta actually had little to do with democracy. The rich and powerful barons wanted to protect themselves from the arbitrary and capricious wrath of the king. They weren't thinking much about the common man.
There is a 1297 version of Magna Carta at the National Archives in Washington, D.C. This particular document, owned for centuries by an English family, was purchased by Ross Perot in 1984 for $1.5 million. It was on loan to the National Archives, but in 2007, Perot terminated the loan, took back the document, and sold it at auction for $21.3 million. The new owner, David M. Rubenstein, of the private equity firm The Carlyle Group, has arranged for the document to be permanently displayed, in a gallery that bears his name, at the National Archives.
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"They weren't thinking much about the common man." And even less about the common woman.
ReplyDeleteIn America, public fishing rights were codified shortly after the colonies were founded. In the 1640s, the city of Boston established laws to protect public rights to fishing waters, and the Massachusetts Bay Colony declared public rights to fish in the “great ponds,” and to cross private property, if not cultivated, to get to the water. People tend to assume that fishing at that time was just for sustenance, but the sport of fly fishing was already popular in Europe before America was colonized, and in Philadelphia there were at least five different fishing clubs before the American Revolution.
ReplyDeleteAfter the Revolution, state and federal courts upheld public fishing rights, as well as state authority to regulate fishing to conserve fisheries. In Arnold v. Mundy, the historic fly fishingowner of land next to a river claimed private ownership of the fishing rights, but the court said this amounted to claiming that “Magna Carta was a farce.” The court relied on “the law of nature, which is the only true foundation of all the social rights,” and said Magna Carta was “nothing but a restoration of common rights,” then held that the state “cannot make a direct and absolute grant of the waters of the state, divesting all the citizens of their common right,” adding that such a grant “never could be long borne by a free people.” In Martin v. Waddell, the U.S. Supreme Court held that in America, as in England, the public has a “liberty of fishing in the sea, or creeks, or arms thereof, as a public common of piscary.” (Fishing place.) In subsequent cases, the U.S. Supreme Court held that states hold surface waters “in trust” for the people, so that the people will have “liberty of fishing therein freed from the obstruction or interferences of private parties.” It held that a state cannot “abdicate its trust over property in which the whole people are interested,” and that rivers “shall not be disposed of piecemeal to individuals as private property.” These principles, taken together, are now known as the Public Trust Doctrine.
- See more at: http://www.nationalrivers.org/history-of-river-rights.html#sthash.Ks7Fwap2.dpuf
It's true that Magna Carta primarily defended the barons against King John's absolute power, but commoners experienced immediate satisfaction from certain clauses, such as those pertaining to navigation.
ReplyDeleteCommon understandings concerning surface uses of waters owned by the King were adopted into American common law after the War of Independence, with "the State" now substituted for "the King."
In New York state, Magna Carta's establishment of due process eventually led to the Article 78 petition, which was previously referred to as the Writ of Mandamus (from the word "mandatory").
Both the Writ and its successor the Article 78 permit citizens to force politicians and government officials to carry out their required mandates.
The City of Hudson's sewer controversy is riddled with such official failures, from the State on down, for which the Article 78 is the law's only remedy.
The Common Council should take a step back and learn the facts before committing constituents to this onerous step.
To discern the patently discretionary elements of the case, just consider the sewer plan itself. Nobody claims that the PLAN is mandated; it represents only one design alternative among several, and surely the least intelligent one.
In breach of a federal requirement, the current sewer separation plan was drawn up without public participation, but by whose prerogative? Put another way, who's playing King John riding roughshod over our long-established rights?
The NYS DEC commented on our sewer controversy last Friday by suggesting a reasonable project alternative. So far, only our Conservation Advisory Council members have been informed, but sadly the news may travel no further.
It's marvelous that the reason the State of New York may not interfere with the Common Council's decision-making can also be traced to Magna Carta.
I hope that Hudson residents choose something amazing for this 800th birthday, by putting self-determination above the unrelenting tyranny of the Old Boys.
In 2008, I traveled to England and whilst touring, I had dinner with the Brudenells one night. This was at Deene Park, an estate that had belonged to the family since 1514. The Brudenells were the family who had a copy of the Magna Carta "laying around the house" and sold it to H. Ross Perot and told me the story. They are descended from the Earl of Cardigan, who led the Charge of the Light Brigade and there was a painting of the event just above my head during dinner. They also had the uniform he wore and parts of his horse mounted in the house, which was a bit gruesome, but that was in the 19th century and they did such things then. Her gardens were designed by Hicks and were so lovely, with topiary teapots and blue flowers.
ReplyDeleteGreat story, wow!
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