Representative Paul Stam
Speaker Pro Tempore
House of Representatives
North Carolina General Assembly
June 25, 2015
(revised October 2015)
Magna Carta was a deal between the nobility and King John. He was a really bad king. He was in deep trouble and barely kept the crown, and perhaps his life, by making 63 campaign promises.
In 1215 the first and last sections of Magna Carta protected the English church from the King.
Section 1
(1) FIRST, THAT WE HAVE GRANTED TO GOD, and by this present charter have confirmed for us and our heirs in perpetuity, that the English Church shall be free, and shall have its rights undiminished, and its liberties unimpaired. That we wish this so to be observed, appears from the fact that of our own free will, before the outbreak of the present dispute between us and our barons, we granted and confirmed by charter the freedom of the Church’s elections – a right reckoned to be of the greatest necessity and importance to it – and caused this to be confirmed by Pope Innocent III. This freedom we shall observe ourselves, and desire to be observed in good faith by our heirs in perpetuity.
Section 63
(63) IT IS ACCORDINGLY OUR WISH AND COMMAND that the English Church shall be free, and that men in our kingdom shall have and keep all these liberties, rights, and concessions, well and peaceably in their fullness and entirety for them and their heirs, of us and our heirs, in all things and all places for ever. Both we and the barons have sworn that all this shall be observed in good faith and without deceit.
Freedom of the church was guaranteed by the barons as well as by the King. It is no accident that freedom of religion is the First Amendment to our Bill of Rights.
In 2015 when the Little Sisters of the Poor, a charitable order of nuns, is threatened with massive fines by the federal government, we need a restoration of religious freedom.
“You Will Be Assimilated” by Jonathan V. Last, The Weekly Standard, June 22, 2015, recounts how Catholic Charities have been driven out of adoption and foster care in Illinois, Massachusetts and the District of Columbia.
Tax Exemptions for contributions to (and the property of) most Christian institutions may soon face their greatest test since the Statute of Uses in the 27th year of the reign of Henry VIII. N.C. Gen. Stat. §41-7. In oral arguments in Obergefell v Hodges, Solicitor General Donald Verrilli’s “It’s going to be an issue” was ominous. Since same sex marriage has now become nationwide policy by 5-4 vote of the U.S. Supreme Court, then there is precedent (IRS v Bob Jones University, 1983) to remove tax exemption from religious institutions that do not bow to the newly discovered liberty.
Section 2
TO ALL FREE MEN OF OUR KINGDOM we have also granted, for us and our heirs for ever, all the liberties written out below, to have and to keep for them and their heirs, of us and our heirs:
(2) If any earl, baron, or other person that holds lands directly of the Crown, for military service, shall die, and at his death his heir shall be of full age and owe a ‘relief’, the heir shall have his inheritance on payment of the ancient scale of ‘relief’. That is to say, the heir or heirs of an earl shall pay £100 for the entire earl’s barony, the heir or heirs of a knight 100s. at most for the entire knight’s ‘fee’, and any man that owes less shall pay less, in accordance with the ancient usage of ‘fees’.
After the Norman Conquest (1066) the “death tax,” in an unlimited amount, could be imposed. That is, if William the Conqueror didn’t want to put a new knight in a castle to defend the borders, he would ask the dead knight’s heirs to pay money to remain in the new house to which they had become accustomed. By 1215 the death tax had been quantified. In 2013, the General Assembly finally repealed North Carolina’s death tax. The United States still imposes a death tax at a high rate on estates over $5 million.
Section 12
(12) No ‘scutage’ or ‘aid’ may be levied in our kingdom without its general consent, unless it is for the ransom of our person, to make our eldest son a knight, and (once) to marry our eldest daughter. For these purposes only a reasonable ‘aid’ may be levied. ‘Aids’ from the city of London are to be treated similarly.
“No taxation without representation”
Regulatory Fees – But administrative bodies regularly impose penalties. In 1215 these “aids” were limited to these important categories.
- negotiating with terrorists, and
- royal parties for the eldest prince and princess.
Section 13
(13) The city of London shall enjoy all its ancient liberties and free customs, both by land and by water. We also will and grant that all other cities, boroughs, towns, and ports shall enjoy all their liberties and free customs.
“Home Rule” or “Dillon’s Rule?” Every session the General Assembly strikes a new balance on the perennial question: How much big LOCAL government do our citizens want – Who decides?
The Charlotte Airport, Asheville water system, elections in Greensboro, involuntary annexation of Lake Junaluska. All these issues take legislative time and energy.
A fascinating article on this subject by Thomas H. Burwell, “A Story of Privileges and Immunities: From Medieval Concept to the Colonies and United States Constitution” is published at 34 Campbell Law Review (Fall 2011).
Section 14
(14) To obtain the general consent of the realm for the assessment of an ‘aid’ – except in the three cases specified above – or a ‘scutage’, we will cause the archbishops, bishops, abbots, earls, and greater barons to be summoned individually by letter. To those who hold lands directly of us we will cause a general summons to be issued, through the sheriffs and other officials, to come together on a fixed day (of which at least forty days notice shall be given) and at a fixed place. In all letters of summons, the cause of the summons will be stated. When a summons has been issued, the business appointed for the day shall go forward in accordance with the resolution of those present, even if not all those who were summoned have appeared.
“Due Process” means adequate advance notice to those affected and an opportunity for them to be heard. In the 2015 Session, dozens of bills were introduced that address the question of notice to those affected by government action.
But none of them apply to notice of legislative action which can be extremely short (overnight for proposed committee substitutes or conference reports in the House).
Section 15
(15) In future we will allow no one to levy an ‘aid’ from his free men, except to ransom his person, to make his eldest son a knight, and (once) to marry his eldest daughter. For these purposes only a reasonable ‘aid’ may be levied.
If Section 12 applies to the King it should also apply to lesser officials so that there is “equal protection of the law.” This principle is imbedded in the U.S. Constitution Fourteenth Amendment and North Carolina Declaration of Rights Sections 1 and 19.
Section 17
(17) Ordinary lawsuits shall not follow the royal court around, but shall be held in a fixed place.
Superior Court judges ride the circuit within their division to the fixed location of the courts at county seats. The theory is that judges who rotate throughout a division are less likely to serve “home cooking.” Previous to Magna Carta, litigants would follow the King or his judges from place to place, hoping they might be heard after sufficient fees (bribes) had been paid.
Section 20
(20) For a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood. In the same way, a merchant shall be spared his merchandise, and a villein the implements of his husbandry, if they fall upon the mercy of a royal court. None of these fines shall be imposed except by the assessment on oath of reputable men of the neighbourhood.
Every session the General Assembly determines what fines are reasonable and proportionate to the offense.
Every few years the Assembly adjusts the homestead allowance – that is, what is left to a debtor after an execution or bankruptcy.
More on this in Section 52.
Section 24
(24) No sheriff, constable, coroners, or other royal officials are to hold lawsuits that should be held by the royal justices.
The “common law” (in contrast to local or customary law) was that part of the law that was “common” throughout the kingdom. This “common law” was to be applied by the royal (federal) judges – not by state or local courts. So too, we have some claims for which exclusive jurisdiction is in the federal courts.
Section 25
(25) Every county, hundred, wapentake, and tithing shall remain at its ancient rent, without increase, except the royal demesne manors.
Some issues never die. Tax increases and unfunded mandates were not first imposed last year. There was, for sure, an English TEA PARTY in Nottingham.
Section 39
(39) 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 way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.
This appears as the most ancient part (1776) of the North Carolina Declaration of Rights. Article I Section 19 now reads: “No person shall be taken, imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty, or property, but by the law of the land.”
A few years ago there was an effort to make the text of our state constitution “gender neutral.” I could not bear the thought of changing “his” (which was gender neutral in 1215 AD and in 1776 AD) to something more politically correct. So I noted that to make our constitution “gender neutral” we would refer to the then Chief Executive as Governess Bev Perdue and to then Senatress Kay Hagan.
Section 40
(40) To no one will we sell, to no one deny or delay right or justice.
Litigation, then and now, requires years to complete. Many of us are working now to realize that promise so that the resolution of criminal charges, at least, may require only months and not years.
Section 41
(41) All merchants may enter or leave England unharmed and without fear, and may stay or travel within it, by land or water, for purposes of trade, free from all illegal exactions, in accordance with ancient and lawful customs. This, however, does not apply in time of war to merchants from a country that is at war with us. Any such merchants found in our country at the outbreak of war shall be detained without injury to their persons or property, until we or our chief justice have discovered how our own merchants are being treated in the country at war with us. If our own merchants are safe they shall be safe too.
In a day when the principles of free trade and free enterprise are attacked from the right and from the left, this one of King John’s campaign promises favored free trade. Free trade and free enterprise have many friends – except when its “friends” think it damages their own pocketbooks. 800 years ago, the English realized that free trade and free enterprise are powerful engines of economic growth for the state as a whole. The article by Burwell (cited under Section 13) is extremely helpful on this point.
English (and then American) history has been a constant struggle to free our economy from monopolists, cartels, guilds and unions.
Section 45
(45) We will appoint as justices, constables, sheriffs, or other officials, only men that know the law of the realm and are minded to keep it well.
In 1980, North Carolina amended its constitution to require that judges have a law license. In 1974, Republicans had nominated as Chief Justice a fire extinguisher salesman of dubious abilities.
Every session, including this one, we debate and change the way judges are selected. Some methods produce those who know the law well. Some methods produce judges who are minded to keep it well. We haven’t devised a system that accomplishes both goals.
Section 47
(47) All forests that have been created in our reign shall at once be disafforested. River-banks that have been enclosed in our reign shall be treated similarly.
Environmental issues didn’t surface in the “Silent Spring of the 1960’s.” 800 years ago there were those advocating locking up land from use by the public. Robin Hood and the Sheriff of Nottingham came to blows over this question. Robin Hood won when King John made campaign promise number 47. – Remember that Robin was exiled to the forests and was in trouble for shooting the King’s deer.” This year the General Assembly revised the regulation of “riparian buffers” –riverbanks which had extended far beyond what hydrology and other environmental sciences require.
Section 52
(52) To any man whom we have deprived or dispossessed of lands, castles, liberties, or rights, without the lawful judgment of his equals, we will at once restore these. In cases of dispute the matter shall be resolved by the judgment of the twenty-five barons referred to below in the clause for securing the peace (§61). In cases, however, where a man was deprived or dispossessed of something without the lawful judgment of his equals by our father King Henry or our brother King Richard, and it remains in our hands or is held by others under our warranty, we shall have respite for the period commonly allowed to Crusaders, unless a lawsuit had been begun, or an enquiry had been made at our order, before we took the Cross as a Crusader. On our return from the Crusade, or if we abandon it, we will at once render justice in full.
I object that some administrative penalties do not rate a jury trial. Some day North Carolina will catch up with this promise of the Great Charter. This year the General Assembly at least put the burden on the government to impose fines and penalties only by clear and convincing evidence.
Even old scores need to settled. State compensation for eugenics victims of the State of North Carolina was authorized in 2013 (and more recently by Virginia). The SL2015-241 section 6.13, expedited paymenet to those victims already determined to be eligible.
Section 55
(55) All fines that have been given to us unjustly and against the law of the land, and all fines that we have exacted unjustly, shall be entirely remitted or the matter decided by a majority judgment of the twenty-five barons referred to below in the clause for securing the peace (§61) together with Stephen, archbishop of Canterbury, if he can be present, and such others as he wishes to bring with him. If the archbishop cannot be present, proceedings shall continue without him, provided that if any of the twenty-five barons has been involved in a similar suit himself, his judgment shall be set aside, and someone else chosen and sworn in his place, as a substitute for the single occasion, by the rest of the twenty-five.
Bring the archbishop along if the barons can’t decide. Court ordered mediation and arbitration are now part of the legal landscape.
And a recusal by a conflicted baron is now mirrored in recusal by a conflicted magistrate where authority to marry is given to another (SL2015-75).
Section 61
(61) SINCE WE HAVE GRANTED ALL THESE THINGS for God, for the better ordering of our kingdom, and to allay the discord that has arisen between us and our barons, and since we desire that they shall be enjoyed in their entirety, with lasting strength, for ever, we give and grant to the barons the following security: The barons shall elect twenty-five of their number to keep, and cause to be observed with all their might, the peace and liberties granted and confirmed to them by this charter. If we, our chief justice, our officials, or any of our servants offend in any respect against any man, or transgress any of the articles of the peace or of this security, and the offence is made known to four of the said twenty-five barons, they shall come to us – or in our absence from the kingdom to the chief justice – to declare it and claim immediate redress. If we, or in our absence abroad the chief justice, make no redress within forty days, reckoning from the day on which the offence was declared to us or to him, the four barons shall refer the matter to the rest of the twenty-five barons, who may distrain upon and assail us in every way possible, with the support of the whole community of the land, by seizing our castles, lands, possessions, or anything else saving only our own person and those of the queen and our children, until they have secured such redress as they have determined upon. Having secured the redress, they may then resume their normal obedience to us. Any man who so desires may take an oath to obey the commands of the twenty-five barons for the achievement of these ends, and to join with them in assailing us to the utmost of his power. We give public and free permission to take this oath to any man who so desires, and at no time will we prohibit any man from taking it. Indeed, we will compel any of our subjects who are unwilling to take it to swear it at our command. If one of the twenty-five barons dies or leaves the country, or is prevented in any other way from discharging his duties, the rest of them shall choose another baron in his place, at their discretion, who shall be duly sworn in as they were. In the event of disagreement among the twenty-five barons on any matter referred to them for decision, the verdict of the majority present shall have the same validity as a unanimous verdict of the whole twenty-five, whether these were all present or some of those summoned were unwilling or unable to appear. The twenty-five barons shall swear to obey all the above articles faithfully, and shall cause them to be obeyed by others to the best of their power. We will not seek to procure from anyone, either by our own efforts or those of a third party, anything by which any part of these concessions or liberties might be revoked or diminished. Should such a thing be procured, it shall be null and void and we will at no time make use of it, either ourselves or through a third party.
Magna Carta addresses separation of powers. North Carolina was the first state to place that principle of separation of powers in its constitution, on instruction from the inhabitants of Orange County to the Provincial Assembly in 1776 (Bayard v Singleton, 1 N.C. 42 (1787)): But what is the remedy for usurpation of power by an Executive like King John? Is the remedy a lawsuit? That is not usually practical.
Magna Carta suggested a unique consequence. This requires not only the translation from Latin to English but also a paraphrase:
“If we, or our Attorney General, Loretta Lynch, offend in any respect against any man, and offense is made known to the Senate they shall come to us or to the Attorney General – to declare it and claim immediate redress. If we, or the Attorney General, make no redress within 40 days the Senate may then subpoena every piece of paper in the White House with the support of the Congress and mainstream media, by seizing the White House, Camp David, Air Force One, and anything else, except only our own person and that of Michelle and our children, Malia and Sasha, until they have secured such redress as they have determined upon. And having secured that redress the Senate may then resume its normal obedience to us.”
That would really turn things around in Washington.
We address new challenges, new technology, new demographics and the ideas of new representatives. But old disputes will often suggest the way forward.
