Magna Carta Saves Legality of the Declaration of Independence

May/June 2015

By Anthony B. Haller, Esquire

In the fall of 2013, The Honourable Society of Gray's Inn issued a challenge to the Temple American Inn of Court to hold a rematch of their celebrated debate on the legality of the Declaration of Independence, which took place on October 18, 2011, in Philadelphia. The Temple American Inn of Court accepted the challenge and sent a debate team and delegation to London to go head-to-head in a second round of debate competition. On the evening of April 1, 2014, the two Inns once again squared off, this time in the Great Hall of Gray's Inn, for a formal Oxford-style debate on the motion, proposed by the British: "This House Believes the Declaration of Independence was an Illegal Document."  On the last occasion, the motion was defeated by a decisive majority, albeit of an exclusively American voting audience.

The Gray's Inn strategy quickly became clear. Gray's Inn made a calculated decision to lure the Temple American Inn of Court team and its accompanying delegation to the United Kingdom with an enticing offer of an exclusive three-day program on "Legal London" and, for a change, to force "the bloody Yanks" to fight on British soil, thereby avoiding the historical home field advantage of Colonial forces. Once the American team had been lulled into a false sense of security by Gray's Inn's gracious hospitality and enough port had been poured to promote a general lack of coherence, the British intended to use their persuasive powers to point out that the Declaration of Independence was an act of rebellion and, by definition, contrary to the then-governing law of Parliament. As they argued in the debate, there was no legal principle in 1776, and there is none today, which allows a group of citizens to establish their own laws of their own volition. The question, they said, is not whether the act of rebellion was justified, but rather whether it was contrary to the existing obligations of allegiance to the King and Parliament. The Gray's Inn team deftly argued that the colonists acknowledged they were committing treason. Invoking Benjamin Franklin's famous statement on July 4, 1776, uttered as he scrawled his signature on the sheepskin parchment of the Declaration-"We must, indeed, all hang together, or assuredly we shall all hang separately" -the Gray's Inn team claimed this was "about as complete an admission of guilt as one could get."

Not fooled by the Gray's Inn tactical approach, the Temple American Inn of Court team maintained its sobriety and presented a compelling argument that the Declaration of Independence was simply an expression of then-existing fundamental rights. The American team argued that before the Stamp Act of 1765, there was a long-established constitutional arrangement by custom, usage, and consent under which the King in Parliament could legislate for the external affairs of the Colonies, but the internal affairs were reserved for the local assemblies. These assemblies were elected by the people of the Colonies who were not, in any sense, represented in Parliament. This constitutional framework was destroyed in the dismal decade following 1765. The Coercive Acts stripped the Colonists of their constitutional rights. Under the common law at the time and its more limited view of Parliamentary Supremacy, the Coercive Acts were repugnant and void; the Declaration of Independence was in this sense no different from the Petition of Rights and the Bill of Rights, which the British view not only as legal but as central to the English Constitution.

Much to the amazement of those in attendance, a majority of the predominantly British audience voted loudly against the motion. Any thought of renewed British sovereignty over America immediately dissipated as the Declaration of Independence was once again assured of its legality.

When polled, the British guests were asked if anything was pivotal in their voting decision. The answer, of course, was "Magna Carta." By grounding the argument in the common law and its respect for the principle of consent derived from Magna Carta, the Temple American Inn of Court team struck a winning chord. As quoted by the American team, Lord Denning in his 1980 Dimbleby Lecture on the Abuse of Power said: 

It is why in times past we stood firm against the oppression of King John, and set store by our Magna Carta. It is why we rebelled against the divine right of kings and enacted our Bill of Rights… There is as far as I know only one restraint on which we can rely. It is the restraint afforded by law.

Eight hundred years of common law stemming from the events at Runnymede won the day.

Some outside observers asked why leading lawyers from the two countries would, in the 21st century, "waste" their time and effort to debate something that has no modern application. To those victims in today's world oppressed by tyrannical regimes or terrorist organizations, the fundamental rights enshrined in the Declaration of Independence are acutely relevant. The Declaration of Independence remains a call to justice for basic human rights all over the world and has inspired millions of people outside of America. Its principles of inalienable rights and self-determination are found in the United Nations Charter and the Universal Declaration of Human Rights, which Eleanor Roosevelt in her famous speech at the UN called "the international Magna Carta."

Just as the debate audience was moved, so we should all be moved by the events that occurred so long ago on the fields of Runnymede. The fact that Magna Carta is still being discussed and acknowledged 800 years later as the foundation of the principle of government by consent is both astonishing and magnificent. We often talk glibly about a government "of the people, by the people." We should not. This fundamental principle of consent derived from Magna Carta is the cornerstone of our Republic.

The Gray's Inn team consisted of Sir Charles Haddon-Cave, High Court Judge, Queens Bench Division; Sally Jane O'Neill QC, Furnival Chambers; and the Honorable Michael J. Beloff QC, Blackstone Chambers. The Temple Inn team consisted of Hon. William C. Koch, Jr., dean of Nashville School of Law (by invitation); Professor Robert J. Reinstein, Temple University Beasley School of Law (by invitation); and Anthony B. Haller, Esquire, Blank Rome LLP. The debate was moderated by Joshua Rozenberg, widely recognized as the leading British legal commentator and journalist.

Anthony B. Haller, Esquire, is a partner in Blank Rome LLP in Philadelphia, Pennsylvania. He is a member of the Temple AIC and also serves on the American Inns of Court Board of Trustees.

© 2015 ANTHONY B. HALLER, ESQ. This article was originally published in the May/June 2015 issue of The Bencher, the flagship magazine of the American Inns of Court. This article, in full or in part, may not be copied, reprinted, distributed, or stored electronically in any form without the express written consent of the American Inns of Court.