Greece, Rome, and the Bill of Rights (12 page)

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Authors: Susan Ford Wiltshire

Tags: #Political Science, #General, #History, #Law, #Reference, #Civil Rights, #test

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Magna Carta
A major advance in constitutional development in England came in the early thirteenth century with the signing of Magna Carta. With this event, what formerly had been private law and custom deriving from personal relations became written and public. As mere subjects with no power, King John's barons could not restrain God's appointed monarch. The barons, however, were not only subjects; they were also barons, and in that role they shared comparable power with the king, who was also a baron. It was as barons rather than subjects that they forced King John to make his constitutional surrender in 1215 at Runnymede.
The situation leading to Magna Carta was one of détente, with different powers balancing each other out. The barons were in a position to destroy King John altogether. The king, while tactically at the disadvantage, knew that all of his castles were garrisoned and ready to fight. Knowing that their balance was temporary, the barons were careful not to overplay their hand. Ultimately they received John's assent to all but one of their forty-nine demands. On June 15 John sealed the articles. For three days they were worked over, apparently with Stephen of Canterbury leading the task, and on Friday, June 19, both parties came together, read the agreement, and sealed the final copies.
Magna Carta is venerated by some as "the greatest constitutional document of all timesthe foundation of freedom of the individual against the arbitrary authority of the despot."

16
By its own terms, however, it claimed to be a reassertion of ancient customs and a restoration of earlier liberties. Chapter 39, called by Sir Edward Coke "the golden passage" of English law, is the crucial chapter of Magna Carta for the history of due process and the protection of personal freedom. This provision was not original. Rather, it restated an axiom that had received its first clear formulation in the edict of the German Emperor Conrad II in 1037, found in the
Liber feudorum
, that no soldier could be deprived of his fief except by judgment of

 

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his peers: "No freeman shall be captured and imprisoned, or disseized, or outlawed, or exiled, or in any way harmed, except by a lawful tribunal of his peers and by the law of the land."

17
Judgment by peers had been laid down in a number of documents throughout Europe; in England it appeared in the Laws of Henry I in the form, "Each man is to be judged by his peers in the same neighborhood."
18

Chapter 39 reads as follows:
No
freeman shall be taken or imprisoned or disseized
of any freehold, or liberties, or free customs, or outlawed, or banished,
or in any other way destroyed, nor will we
go upon him, nor send upon him,
except by
the legal judgment of his peers or by
the law of the land
. To no one will we sell, to no one will we deny or delay right or justice.
Its close relationship to the Fifth Amendment of the U.S. Constitution may be noted by the parallel concepts found in italics:
No person shall be held to answer
for a capital, or otherwise infamous crime, unless on a presentment or indictment by a grand jury, ...
nor shall any person
...
be deprived of life, liberty, or property, without due process of law
.
Chapter 39, which became Chapter 29 in the definitive form of Magna Carta, outlived all the other details of the document. Although it was stated as a universal principle at the time and eventually would become one, in 1215 it applied only to all freementhat is, freeholders entitled to a franchise with tenancy. At the time, this may have amounted to only about 10 percent of the population. Not until four hundred years later would the English Revolution put an end to the feudal tenures Magna Carta was designed to sustain.
19
There was no thought that these rights were ever divinely granted by any divine law or even natural law, not because they were conceded by any higher authority, but because they had gradually come into being and then emerged into the public sphere. "In brief," concludes

 

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Ullmann, ''the individual's safety, freedom, and property were declared inviolate, were removed from arbitrary interferencein a thoroughly feudal document."

20

This article has been seen as the origin of the rule of law and of the principle of due process of law.
21
Nevertheless, these processes were part of the feudal compact rather than the emanation of new theories sprung full-blown from the brain of Zeus or any man. As J. C. Holt puts it, "The liberties of the twelfth and thirteenth centuries were no infection spreading from one country to another; they were part of the very atmosphere."
22
The grievance of the barons was that King John had set aside the feudal compact. What they had wanted to see established was not the king's law but the "law of the land," that collection of written and unwritten rules that had been common to the barons and to the king as a baron.
After Runnymede the understanding was established that the governor as well as the governed is subject to the rule of law. This principle obtained when Charles I acceded to the Petition of Rights, when William III and Mary II accepted the Declaration of Rights in 1689, and when George III was served with the American Declaration of Independence. Edward Coke (15521634) may have devised an abstract principle out of the pragmatic arrangements settled at Runnymedethe matter of Coke's understanding is much debated
23
but the proposition that the personal liberty of subjects is the highest function of law became one of enduring worth.
24
Even though only four of the original thirty-seven clauses remain in force,
25
the ideals of Magna Carta have inspired and protected individual liberties for nearly eight centuries.
Magna Carta and Natural Law
In the mid-seventeenth century, customary or common law came to be compared invidiously with the wider claims of abstract natural rights. An early proponent of natural rights was Henry Parker, whose writings had an important influence on Hobbes. Parker, in supporting Parliament against the power of the throne, rejected depen-

 

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dence on common law as a source of great harm. Equating Parliament with the state, he identified the fundamental laws that governed both not with custom or statute but with the law of nature: "Fundamental law is such a one as is coucht radically in Nature itself (and so becomes the very pin of law and society) and is written and enacted irrepealably in her
Magna charta
, which we are not beholden to any sublunary power for, but belongs to us as we are living and sociable creatures."

26

This challenge on the basis of natural law would grow. By the time of the American Revolution, the authority of Parliament was being challenged by radicals at home and by American colonists abroad. The issue was the sovereignty of Parliament, concerning which the colonists and their English radical sympathizers such as William Pitt, first earl of Chatham, and Charles Pratt, first earl of Camden, held that the actions of Parliament were limited by fundamental, natural law. Chatham, for example, considered Magna Carta "the Bible of the English Constitution," a "political bible" that could not be used to support government action against the colonists.
27
Camden attacked the Declaratory Bill of 1766 as "absolutely illegalcontrary to the fundamental laws of nature, contrary to the fundamental laws of this constitution."
28
Events in France and America influenced the political climate in England in the later eighteenth century, bringing a concomitant challenge to the common law tradition of Magna Carta. In stressing unlimited and inalienable rights, leading thinkers rejected mere appeal to precedent. James Mackintosh observed: "It is not because we
have
been free, but because we have a right to be free, that we ought to demand freedom.
29
Thomas Paine took the issue even further, rejecting all historical assumptions in favor of natural ones. Paine saw Magna Carta not as the fountainhead of liberty but as a document partially securing inherent civil liberties. Carrying the thought of Hobbes and Locke one step further, Paine replaced common law and precedent with ideas of abstract law and natural rights. Paine's ideas, however, did not fare well in an England marked by conservative reaction against the

 

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French revolution.

30
More popular was Edmund Burke's insistence on the continuity of English laws and institutions, strongly rooted in antiquity even while undergoing change in response to circumstances.
31

Magna Carta does not represent in any sense a democratic revolution. The constituted tribunals were tribunals of one's peers, that is, others of like status. It was unthinkable that one would be judged by anyone of lower status. The great breakthrough, however, was that individual rights were confirmed by a written document rather than imagined as a theory or conceded as a gift by one individual to another.
The impact of feudalism and English common law on human liberty was expressed succinctly in a special medal struck for Edward III's coronation in 1327, signalling a return of the ascending theme of government. The motto on the medal reads
Voluntas populi dat jura
, "The will of the people gives the laws."
Early English Theories of Rights
An important transitional figure in the late medieval period in England is William of Ockham (or Occam) (c. 12901349). Ockham saw the natural moral law as the positive law of divine will. He broke with Aquinas by positing that everything God does is done because God wills it, not because it is somehow suitable to the nature of human beings. Thus Ockham saw no universals, only individual particulars. By asserting that universals are only names (
nomina
) for similarities among existing thingsrather than, as Aquinas insisted, their real essencesOckham with his nominalism paved the way for a more radical individualism.
32
In many universities he came to represent the modem way,
via moderna
, as opposed to the
via antiqua
of Aquinas. Michel Villey holds that Ockham provides in his
Opus nonaginta dierum
the first systematic account of subjective rights.
33
Ockham advanced individualism also by his emphasis on natural law in his political writings.
34
As one provision of natural law, he states that rulers should be elected by

 

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