April 13 2013
Remarks to the Annual Dinner of the
National Society of the Magna Carta Dames and Barons
University Club, Washington, D.C.
Saturday, April 13, 2013
· Flattered at the kind invitation of the Society to address your annual dinner.
· Sought to recommend some more eminent scholars and experts on constitutional government, the rule of law, due process and English history – some right here in Washington – as these aren’t my ‘longest and strongest’ suits (for you bridge players).
· So I was doubly flattered when the verdict came back: “No, we want YOU.”
· Since, actually, that sounded like something King John himself might have said, it was a pleasure to assent.
· I certainly can’t claim the eminence of some of your previous annual dinner speakers, like Sir Robert Wooster or Francis Neate – nor the lineage of Arabella Churchill.
· But I hope tonight, by delving into a nearby part of the world in which, for my sins, I’ve become somewhat steeped over the last decades, to remind us all how blessed we are to be the inheritors of the tradition and legacy of the Magna Carta and what a precious blessing we have to pass along to future generations – if we can teach them to appreciate its value.
· My remarks tonight will scarcely be an exercise in fashionable multi-culturalism. In that sense, neither will they be ‘politically correct.’ If any of you have a particular Hispanic heritage – either from Spain or from one of our Latin American neighbors and my brief excursion into the Western Hemisphere’s colonial history strikes you as mistaken or unfair, I’m sure we’ll have time to ventilate your viewpoint and ‘correct the record’ after dinner.
· When I received tonight’s invitation and briefly inventoried what I had to ‘bring to the party’, it struck me that one of the best – but perhaps not the most conventional – ways to appreciate the Magna Carta would be to examine societies that did not grow up with this heritage.
· That, of course, includes the entire non-English speaking world – and even some parts of the English-speaking world where Magna Carta’s historic influence failed to become deep-rooted.
· That would be a pretty big mouthful to bite off – much less to successfully masticate – in a single evening’s dinner address.
· So, to make the task manageable, I thought to concentrate my comments on the Western Hemisphere.
· After all, the nations of the Western Hemisphere share a number of things in common besides geography.
o With a nod to pre-Columbian primitive societies, all the nations of the Western Hemisphere are new within the last 500 years; they are not the modern avatars of societies and peoples who trace their histories in the lands they inhabit back thousands of years.
o All Western Hemisphere nations are – as, for instance, an Islamist might put it – ‘Christian Europe’s offspring.’ Indeed, in both North and South America religion was a vital motivation for colonization. Throughout most of Latin America, the mission of Christianizing the natives went hand-in-hand with conquest and the hunt for gold. In North America, finding outlets for England’s religious dissenters – where they could freely exercise their beliefs away from the umbra of the established Church – is an important part of the story of at least half of the English colonies here.
o And all Western Hemisphere nations eventually emerged from a colonial past into an independent ‘present’ – some through revolutionary struggle, beginning with the United States, then Haiti, then Mexico and the Andean nations, and eventually all of Spanish America; some, like Brazil, through a unique evolutionary process; and others, like England’s Caribbean possessions, through eventual de-colonization.
· Those of you who went to school, as I did, in the U.S. in the ‘40s, 50s, 60s, or 70s – heaven only knows what’s taught today – came to appreciate ‘our story’ here in the United States as a narrative of pretty much linear evolution.
o Colonists came to North America seeking profit – e.g., the Virginia Company -- or religious freedom – e.g., Puritans in Massachusetts; offshoot communities who formed Connecticut and Rhode Island; Quakers in Pennsylvania; Catholics in Maryland, etc.
o Other colonists came from some other parts of northern Europe – the Dutch to New York; Swedes to Delaware – eventually helping to forge an ‘American’ identity from the blending of these European influences and traditions.
o The colonists brought with them political traditions with deeper roots in their European – particularly English – past. The Magna Carta prefigured the Mayflower Compact which ultimately pre-figured our ‘Charters of Liberty’ – the Declaration of Independence, the short-lived Articles of Confederation, and ultimately, our Constitution.
o The legacy of English history – particularly the legal concepts pioneered in the Magna Carta and later expressed in the evolution of Parliamentary government and in England’s ‘unwritten’ constitution – as well as our colonial heritage – the tradition of elected colonial legislatures for local law-making and the colonial-era charters and precursors of the Bill of Rights are as indispensable to that ‘story’ as are the two Georges -- George III and George Washington.
· But the colonial experience of our neighbors to the south – particularly in Spanish America – is almost completely different. At a minimum, we can say, it lacks some of the ‘key ingredients’ that have contributed indispensably to the ‘American experiment’ in the United States (and, for that matter, also in Canada – on a smaller scale, of course.)
· For those of you acquainted with Brazil’s history, you’ll immediately recognize that much of what I will relate about the Spanish colonial experience in the new world doesn’t apply literally or exactly to Brazil.
o In the Age of Discovery, Portugal’s main attentions were focused eastward – on the actual passage to the East Indies discovered by da Gama’s earlier explorations; it was initially challenged by Dutch invasion to simply hold onto its nascent South American colony in Brazil.
o Eventually, during the Napoleonic Wars, the Portuguese Court was removed to Brazil from which it ruled the Portuguese empire from Rio de Janeiro. When the court returned to Lisbon after Napoleon’s defeat, the king’s son, Pedro, remained behind in Rio as regent and, a few years later, declared Brazil independent of his father’s kingdom.
o Pedro’s son, Emperor Pedro II, ruled Brazil for 58 years as a constitutional monarchy until he was deposed by a military coup in 1889 – all giving a Brazil an absolutely unique independence history in the Americas – and a societal and development history with some striking parallels to the United States.
· But the experience and heritage of Spain’s colonies in the New World is entirely different. – and it has led, in most countries of Latin America, to a curiously incomplete view of their histories and their ‘national stories’ that stands in sharp contrast to our own ‘linear’ narrative.
· In many ways, Spain’s organization and administration of its colonies was admirably efficient. Two – eventually three – Viceroys ruled Spain’s New World possessions – from Mexico City, Lima, Peru, and eventually Buenos Aires. After the initial decades of lineal descendants of the Conquistadors involved in colonial governance, Viceroys were trusted Spanish noblemen close to the King and the court who governed in the King’s name.
· Lesser administrative units – Capitanias Generales – were established in less critically important areas – e.g., Guatemala for Central America and Cuba for the Greater Antilles – and Real Audiencias in key centers like Quito, Bogota, and what is now Sucre, Bolivia, for the governance of far-flung parts of the ‘Virreynato.’
· The Real Audiencia – literally ‘Royal Audience’ – was a fascinating institution: a three-man combination of executive, legislature and judiciary rolled into one. Always chaired by the local military commander, emphasizing the parammountcy of the crown’s military-security control, the three ‘oidores’ or ‘hearers’ could both promulgate local laws and adjudicate local disputes and crimes.
o Their records are voluminous and fascinating. You can actually read and handle them – with the right introductions – in the national archives of, for example, Bolivia or Ecuador.
· And Spanish colonial administration left a considerable infrastructure of major social institutions, mostly founded and administered (until independence, anyway) by the catholic Church – notably universities and hospitals in Santo Domingo, Mexico City, Lima, Sucre and other major centers.
· But Spain’s colonial administration had some perverse features as well.
o Administrative offices were dominated by Spaniards. Locally-born ‘criollos’ struggled to achieve an effective and decisive voice in the governance of their colonies – a major touchstone for the 19th century’s independence movements.
o The law was fundamentally an edict of the crown. Elected self-government wasn’t really a part of the picture – another key friction point for later independence.
§ And the crown’s legal reach could be remarkably detailed and controlling, especially given the technology of the 16th through the early 19th centuries.
§ For instance, from El Escorial, on the other side of the Atlantic, the King of Spain decreed that all the houses of Cartagena de Indias – on Colombia’s coast – had to be painted white.
§ In a similar way, the Spanish crown prescribed the lay-out of streets in colonial towns (Cartagena’s were prescribed to be curved to complicate invasion and favor defenders) and to charter every important social institution.
§ And the Spanish monarch’s writ certainly extended to eliminating inconveniences – like rounding up and expelling the entire Jesuit order (ironically, founded in Spain by two Spaniards) from all of Spain’s New World possessions when their preaching, teaching and organization among the Indians came to be viewed as threatening to the crown.
o ‘Criollos’ came to consider that they could not get a ‘fair deal’ before Spanish authorities; that colonial administration systematically discriminated against them.
o At the same time, side-by-side with diligent, methodical and meticulous administrative structures and methods, Spain’s administration of its colonies embodied practices to which, I believe, many of Latin Americas most perennially vexing problems can be traced.
§ Frequently strapped for cash, the crown regularly sold important offices ‘to the highest bidder.’
§ One such prized position was mint-master for the royal mints established in major silver mining centers like Potosi.
§ How would such an official ‘investor’ recoup his investment in his office? Obviously, by both cheating the citizens who brought their silver to be smelted and (at some risk) by cheating the crown of its ‘quinta real’ – or ‘royal fifth.’
· The result is a civic culture of ‘ the citizen versus the state.’
o This, I believe, finds its ubiquitous architectural expression in Spanish colonial towns – building patterns partly inherited from the Moorish occupation of Spain from the 8th to the 15th centuries but aptly adapted to keep the king, his Viceroy and the government, as much as possible, ‘out of the family’s business’ – and out of its pockets, as well.
· It has produced a legal theory and approach to the ownership and exploitation of natural resources completely different from, and at odds with, our Anglo-American traditions – which, incidentally, also find their roots partly in the Magna Carta.
o Anglo-American conceptions of property rights generally include rights to sub-soil resources – and those oil, gas and mineral rights, exploited via private initiative, have unleashed untold wealth for their owners and those who work in their exploitation – as well as streams of government revenue that have, literally, paved North America.
o But in Latin America, the prevailing legal framework is different. Doubtless reflecting a combination of continental/Napoleonic law and the origins of Spain’s colonies in ‘extractive industries’ – gold and silver mining to fill the treasure fleets bound for Spain – subsoil resources are the property of the state.
§ Consequently, while they have generated some wealth for those nations lucky enough to possess the resource endowments, they have mostly produced corruption, grossly inefficient, under-capitalized industries, sub-optimal exploitation of the available resources, and – literally – fueled coups and revolutions in the political struggle over control of the wealth.
· It has produced a cynicism about the ‘rule of law’ – such as it is – reflected in such expressions as ‘the law is a weapon for use by the powerful against their enemies.’
o This attitude is, I suspect, only reinforced by the habit – ironically adapted and reinforced during the Napoleonic period – of having almost all legal proceedings – and certainly the most important ones – be entirely via written process before a judge or judges – without the adversarial oral argument and citizen participation via juries that are central to our Anglo-American conception of justice – and that come, in part, from our Magna Carta heritage.
· And it has produced a comparably cynical popular attitude toward the government’s role and writ in the economy – summed up in the expression, coined I’m told in Latin America, that ‘the private sector is the gift of the government to the privileged.’
o Unlimited government has the power to give such precious gifts – and the Magna Carta was precisely the beginning of modern human effort to curb unlimited government.
· One hemisphere. Two halves – north and south. All ‘new’ countries – within the last 500 years – with some even younger than that. All emerged from a couple to a few centuries of colonial rule. Setting Portugal and Brazil aside for the moment, two cultures – and two distinct political and judicial traditions.
· What result? The U.S. and Canada, combined, account for about ¾ of the entire economic output of the Western Hemisphere.
o The U.S. and Canada – along with most of the islands of the English-speaking Caribbean – are the only countries in the Western Hemisphere that have not had some kind of interruption of their constitutional order – a coup, revolution, military dictatorship, etc.
§ In fact, the U.S. and the former British colonies are the only countries still operating under their ‘original’ constitutions.
§ Interestingly, Chavez’s first Ambassador to Washington made an fascinating observation in response to a question I asked him 13 years ago at a Heritage Foundation discussion. Asked why Chavez’s government felt obliged to re-write Venezuela’s constitution when surely it contained an amendment process that should be adequate to remedy any defects, he replied: “Our experience is not unusual. Yours is the unusual experience. Most countries – in Europe and Latin America – have re-written their constitutions many times when conditions have demanded it. The United States is the unusual one, still operating under the same constitution.”
· So, what has made the difference?
· Well, many factors, obviously – the wisdom of our founding fathers; the initiative and pioneering spirit of Americans, from the Pilgrims onward, in taming a new continent; the contributions of the genius and hard work of many peoples from many lands who have flocked here over centuries to build a great country.
· A good many of the factors that have ‘made the difference’ are related to our cultural patrimony from England – chartered, limited government, deriving its powers from the consent of the governed; elected, representative self-government; the rule of law and due process; respect for property rights.
· Fundamental to this Anglo-American heritage is the Magna Carta – the charter we celebrate tonight; the charter whose 800th anniversary we’ll celebrate in 2 years’ time; the charter the understanding and awareness of which your society exists to propagate and advance.
· I hope that this little walk through an alternative history – an alternative colonial legacy – one that did not have the good fortune of sharing our Magna Carta heritage – has helped underscore what a precious gift and heritage the Magna Carta and its principles are for our country and our society.
· Especially with the approach of the Magna Carta’s 800th anniversary, we should rededicate ourselves to preserving, fostering and advancing the appreciation of that precious heritage.