The idea that Englishmen had certain liberties that the King must
respect was first put in writing by Henry I in 1100. It found expression
in Saint Thomas a Becket's defense of the liberty of the English clergy,
for which he was martyred in 1170 at the instigation of Henry II. This
idea was the foundation for one of the most important and least understood
documents in the history of liberty, the original version of Magna
Charta signed by King John in 1215 at the insistence of the barons
and bishops at Runnymede. It was largely a list of promises to stop
certain injustices he was committing, not only against the barons,
but also against the rights of free cities, of the King of Scotland,
and of free Englishmen in general.
By 1225, Henry III had watered down Magna Charta by eliminating many
liberties when he re-promulgated it. The version that appeared for
centuries in English law books was diluted even more.
Liberty as understood by Saint Thomas a Becket, the barons and bishops
at Runnymede, and the medieval English people was not the liberty of “Liberty, Fraternity,
Equality” or of the idea that all men are created equal. The liberty guaranteed
by Magna Charta was the liberty of individuals, determined by their station in
life, and of institutions such as the Church and the free cities. The idea was
that all individuals had certain rights, some individually and some collectively,
and that the violation of these rights by persons in power was contrary to law
and morality. The modern idea that each person was born with the
same rights was not yet invented; the rights each person had were determined
by his station in life and his relations to other people.
The modern theory of liberty is that all men have a right to life, liberty, and
property, or life, liberty, and the pursuit of happiness. This concept is derived
from the fact that the main violations of the liberties of men are (1) killing
them without a just conviction at a fair trial for a crime justly carrying the
death penalty; (2) imprisoning them without due process of law or illegally forcing
them to perform labor; or (3) taking away something that belongs to them. These
are, indeed, the very kind of things Magna Charta forbids.
The modern rhetoric of liberty, however, seldom accompanies true liberty. The
Whigs were fond of talking about life, liberty, and property, but they were nasty
practitioners of persecution. The French revolutionaries spoke of liberty, fraternity,
and equality, but they put people to death by mob will.
The American Constitution marked a rebirth of liberty. It prohibited such obvious
violations of liberty as ex post facto laws and bills of attainder. It required
strict adherence to established English law before the federal government could
kill, imprison, or fine anyone, or enter a judgment against him. On the other
hand, it respected existing rights by leaving intact the peculiar legal relation
between the patroons of New York and their agricultural tenants. It allowed Massachusetts
and Connecticut to maintain their Calvinist state governments rather than entangle
the federal government in religious questions.
The most frequent criticism of the Constitution is that it allowed slavery to
continue. Slavery was, however, firmly in place. It was an important part of
the economies not only of the South, but also of New York and New Jersey. The
first victim hanged in the Salem witch hunt was a black slave. Ending slavery
would have increased the rights of the former slaves, but it also would have
violated the established rights of many other people.
Having government redistribute rights is not true liberty. Edmund Burke understood
this. Rights accrue over generations by prescription. The main reason for not
ending slavery would have been that it violated the collective rights of the
states, much as King John had to be stopped from violating the rights of the
free cities. John C. Calhoun understood that the only safe way to redistribute
rights was for separate majorities at all levels and in all classes to agree
upon the change. Indeed, this is in accord with the principle of subsidiarity,
which favors making decisions at the lowest level possible.
The genius of both the American Constitution and of Magna Charta was
that they made it very hard for the sovereign to realign people’s
rights. This liberty was abandoned by Protestant England, from the
martyrdoms of so many priests, to the government control of liturgies,
to the murder of King Charles I, to the importation of foreign tyrannical
kings from Holland and Germany, to the modern omnipotent state. In
America, liberty was destroyed by the Northern victory in the Civil
War, Reconstruction, the Fourteenth Amendment, and the centralization
of the government. The central government and especially the Supreme
Court have become the umpires of everything.
There once were worlds where governments were more the servants of the law than
the lawgivers. The barons and bishops at Runnymede rose up against an abusive
king and created one such world; the colonial assemblies of 13 colonies rose
up against another abusive king and created another such world. We will not see
liberty again until we see the kind of courage displayed at Runnymede and at
The Confederate Lawyer column is copyright © 2009
by Charles G. Mills and the Fitzgerald Griffin Foundation, www.fgfBooks.com.
All rights reserved.
Charles G. Mills is the Judge Advocate or general counsel for the
New York State American Legion. He has forty years of experience in
many trial and appellate courts and has published several articles
about the law.
See his biographical sketch and additional columns here.
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