I always began my course on the history of freedom in America with Magna Carta.
June 15 is as important a day as July 4. In fact, we never would have had July 4, 1776, without June 15, 1215, when King John was forced near Windsor Castle at the field of Runnymede to sign the Magna Carta—the great declaration of freedoms for Englishmen and now for us as Americans.
The Associated Press reported last month on “an Indiana Supreme Court ruling that people don’t have the right to resist police officers who enter their homes illegally.” That is a clear violation of Magna Carta. Magna Carta was referred to as well in the time of Watergate, when Senator Herman Talmadge—a controversial figure but a man quite learned in the law and history—stated that it was one of the oldest adages of English law that the wind and rain can enter the cottages of the most humble Englishmen but the king in all his majesty may not. That is one of the fundamental rights that our founders and the Americans who ratified the Constitution were determined to build into our new framework of government.
How did Magna Carta come into being? King John was one of the most incompetent people, not to mention rulers, in history. He was the exact opposite of his brother, Richard the Lionheart, who was a mighty warrior and was legendary for his concern for the ordinary people of his realm in England. King John was the opposite, and he managed to alienate every segment of English society. He was at one point even excommunicated by the church. By the time June 15, 1215, came around, John had alienated his barons to such a degree that they were in open rebellion, and the citizens of London and a number of other towns had shut their gates against him. Thus he came to Runnymede and there signed the great charter.
It is most interesting that the charter begins with a statement of a separation of church and state, in the sense that the king has no power over the church (of course at that time it was the Roman Catholic Church). The document then goes on to list a set of fundamental rights that Englishmen possess and that may not be altered by the king—for example, trial by jury, protection of citizens’ homes, right to suitable warrants being issued, right of habeas corpus, and right to travel freely within the realm. The charter also expresses what became a concern for the founders of our country: that the government not possess a large standing army and in fact that the king must send away his mercenaries.
Now the Magna Carta’s importance, first, is that it places the government under the law; the king must obey the law. Second, the charter set up a means of enforcing that the government is under the law by establishing a council of barons, who—believing the king is infringing these fundamental rights of Englishmen—can seize his possessions and deem him to no longer be a lawful king. This continued the tradition of the common law, and when we remember Magna Carta, we must also understand that it is really a fundamental part of the English common law.
What is the common law? We are in danger of forgetting that in our country today. When I recently asked a group of 300 learned attorneys to define the common law, not one of them could. The English common law was the basis of jurisprudence established essentially by King Henry II, who ruled from 1154 to 1189. The term refers to law that is common to the realm as a whole, as compared to individual laws valid only in Wessex or Sussex or Northumberland. The king dispensed the law and sent out justices throughout the realm. From 1189 the common law developed, and Magna Carta was an important stepping stone because it also insisted that Parliament alone could raise taxes. This was another fundamental way of keeping the government under the law.
Edward Coke, the great jurist of the late 16th and early 17th century, pronounced that the English common law was the most perfect body of laws ever drawn up by humans and that it was a reflection of the natural law of God. That is how much emphasis was put upon the common law.
The founders of our country brought the common law with them from England. It was the basis of law in the colonies. More than half of the delegates to the Constitutional Convention were lawyers, and already in the Declaration of Independence the common law had been invoked against the grievances of King George. In fact, every one of his grievances was the breaking of common law.
With the statement that all men are created equal and endowed with the rights of life, liberty, and the pursuit of happiness, the first part of the Declaration represented the view that natural law was reflected on earth in the common law. So the common law is natural law. At the Constitutional Convention, the delegates wrote into the Constitution that the common law would be the law of the land.
When the Constitution went out to the people to be ratified, citizens brought up time and time again that there was not enough about the common law. They were afraid that this new government would impose Roman law on them, just the way King George tried to do. One of the grievances against King George was that he had expanded the territory of Canada down to the Ohio River and had imposed upon it Roman law.
The great treatise on the common law was William Blackstone’s lectures at Oxford, first published in 1765. In the first two generations of our country, Blackstone’s commentary stood on every judge’s bench, and in fact was mostly what these judges had to go by—the Constitution and what Blackstone said about the common law. In many ways, Blackstone and the common law were more influential in this country in our early generations than they had become in Britain.
But all of that would have been meaningless without Magna Carta. Time and time again when despots like King Charles tried to raise taxes without the permission of Parliament, Parliament would stand up and declare that he was breaking the law. And of course in 1649 it cost King Charles his head. When James II tried to do it again, he was run out of the country. His daughter and her husband, William and Mary, were offered the kingship but only with the proviso that they issue a declaration of rights, beginning, “the great charter is to be maintained.”
I was proud of our American Bar Association when some years ago it erected a monument at Runnymede in honor of this fundamental date in the history of our American freedom. But the simple fact is that our courts have eroded the common law. And this makes possible the sort of ruling that came out of Indiana, that public policy can define what our freedoms are. Once we have entered that territory, there is nothing left but rules and regulations that can be interpreted in any way that the government deems necessary. This is exactly the system that has existed in countries like the Soviet Union and Nazi Germany, where everything was “done legally.” The government could in the interest of security suspend all rights. So it’s important that American law schools teach the English tradition of freedom, the English constitution, and the common law.
One of the great moments in the history of freedom was when the king said to Edward Coke, who was his essentially his attorney general, “I am the king, I am the law”—to which Coke responded, “No sire, you are under the law.”
J. Rufus Fears (Ph.D., Harvard University) is a classics professor at the University of Oklahoma. He serves as the Dr. David and Ann Brown Distinguished Fellow for Freedom Enhancement at OCPA.
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