On June 15, 1215, at Runnymede, England, a group of rebelling barons forced their absolute monarch, King John, in the context of a civil war to enter into a social contract.

That contract, known as the Magna Carta, recognized rights in favor of freemen (a narrow propertied class at the time) which the King, at least on paper, could not violate.  Almost immediately annulled by the Pope and the King as an enforceable set of rights, the contract nevertheless continued to grow in stature, at least symbolically, down through the centuries, inspiring ever widening declarations of civil and political rights that would ultimately undermine existing property, class, race, and sex discriminations.  Free societies of the Twenty-first Century are indebted to those barons who, while seeking their self-interest, were also inadvertently planting in English law seeds of civil rights that would progressively grow more universal.  Successive waves of reformers through the centuries would invoke Magna Carta as a source of their demands for human freedom and liberty.

The original Magna Carta (written in Latin, not English) included a hodgepodge of defined rights and privileges.  After an initial declaration of the freedom for England’s catholic church, there followed a number of provisions intended to protect from monarchical interference the barons’ feudal property  rights and status.  There were also provisions starkly discriminatory toward Jews (e.g., a provision suspending interest to be paid on debts owed Jews at the death of a baron) and toward the lower social classes (e.g., a provision limiting marriage with “someone of a lower social standing” unless the heir’s next-of-kin approves).  But there were also provisions which would provide the theoretical foundation for rights to be later extended well beyond the intended baron beneficiaries. Provisions articulating hostility to unjust punishments for non-capital crime are present. Provisions restricting governmental seizure of private property are also present, which would later mushroom into  “just compensation” restrictions on governmental power.  But one provision, later designated clause 39, would particularly lead the way to civil rights central to modern free societies:

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 other 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.

It would not take 800 years for the “due process” themes in clause 39 to find their way into the English unwritten constitution and the American written one.

For several centuries after the Thirteenth, the Magna Carta largely laid dormant as a symbol of human freedom and rights.  But an English lawyer and one-time Lord Chief Justice of England, Sir Edward Coke, would invoke in the early part of the Seventeenth Century Magna Carta and his version of a reason-based common law to create a powerful theory of the supremacy of the rule of law over monarchical power. Roger Williams, who would come to America and deliver to the intolerant Puritans of Massachusetts, and seek later to implement in Rhode Island, the idea of civil freedom, had previously studied under Coke and had imbibed his Magna Carta and common-law notions.  John Lilburne, the great “Leveller”, would come under Coke’s influence as well.  During the English Civil War in the 1640s, Lilburne would advance his own  modern notions of due process and the rights of the individual–  which he drew in part from Coke’s reading of the Magna Carta–while fighting for his very life against charges of treason brought by an oppressive English Parliament.  Not  once, but twice, Lilburne would convince a jury of his peers to rule for individual rights over government power.  Lilburne would passionately advance during his two trials a claim of right to be free from compelled self-incrimination, to be informed of the criminal charges against him, to retain legal counsel, to exercise free speech, and to enjoy due process.  Lilburne’s ringing defenses during his trials would be cited three hundred years later by Justice Hugo Black in Supreme Court cases defining constitutional rights we now take for granted, but which were centuries in the making.

The history of Magna Carta is a lesson of individual freedom and liberty.  The themes it articulated would expand to protect categories of people not included in the original wording and intent.  This process would happen again in America when phrases like “all men are created equal” and “we the people” in rights documents would expand beyond an initial discriminatory reading–  through the pressure of impatient reformers like Roger Williams, Tom Paine, James Madison, Frederick Douglas, John Bingham, Martin Luther King, and a host of others–  to  protect first some “men”, then all “men”, and then all “the people”, at least those people who can claim citizenship.

The Magna Carta is a historical document that has been used, and will continue to be used, by oppressed people around the World as one beacon of light from the past to drive out the darkness of oppression and intolerance, and to open up a space in civil society for individual men and women to live free.  Hopefully, the next 800 years will yield, under the influence of Magna Carta and the other rights documents that have come in its wake, a similar flowering of individual rights and freedoms not only for those occupying the English-speaking West, but for those living in all corners of the World.

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D. Stan Barnhill
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Business and Corporate, Construction, Litigation and Dispute Resolution Practice Groups