The Magna Carta's Everlasting Impact

By D. Kenyon Williams Jr. 

The ruler’s executive orders were a problem for the rebellious house of representatives. Other concerns were the ruler’s elevation of foreign-born individuals without regard to the impact on the resident population and the ruler’s insistence upon arbitrary taxes, as well as his confiscatory policies, not to mention the ruler’s conflict with the Jews. Ultimately, the house of representatives passed a bill that the ruler could not veto, and for a time, it seemed that the conflict was resolved.

Does that sound sort of familiar? Yes, no, maybe? From Inventing Freedom by Daniel Hannan:

On June 15, 1215, in a field near Windsor an event of truly planetary significance took place. For the first time, the idea that governments were subject to the law took written, contractual form. The king [King John] put his seal to a document that, from that day to this, has been seen as the foundational charter of Anglosphere liberty: Magna Carta.

Unfortunately, within six months, King John disregarded the Great Charter (or Magna Carta) and plunged England into the civil war that the barons (precursors to England’s representative house of Parliament) sought to avoid. But, as Mr. Hannan stated in Inventing Freedom, “Just as that war seemed to be on the point of stalemate, the providentially bad monarch (King John) rendered one last service to England by dying opportunely in Newark Castle in October 1216 (almost certainly of dysentery, and sadly not, as one source claims, from a surfeit of peaches).”

For any of you who may be fact-checkers, feel free to confirm that King John brought foreign nationals into his circle of advisors, which caused both resentment in the barons and highlighted for the general population the national identity of Englanders. You will also find that King John imposed heavy tax burdens on England to finance his military efforts to reclaim lands lost in prior wars. He also imposed confiscation of lands and holdings of widows for the same purpose. With regard to the Jews, there was a relatively small population of Jews in England at this time, but they served as financiers, which gave rise to conflicts in which King John was involved.

So what was the Great Charter about? From Professor David Carpenter’s book Magna Carta:

The Charter was above all about money. Its overwhelming aim was to restrict the king’s ability to take it from his subjects. Another major thrust was in the area of law and justice. The Charter wanted to make the king’s dispensation of justice fairer and more accessible, while at the same time preventing his arbitrary and lawless treatment of individuals.

Even though most of us remember Sir William Blackstone for his treatise, Commentaries on the Laws of England (1765-1769), he is also credited with establishing a numbering system for the provisions of the Magna Carta. Chapters 40 and 39 are the two chapters that, in my opinion, cause the Magna Carta to still be revered today. Chapter 40 simply states, “To no one will we sell, to no one will we deny or delay, right or justice.” Chapter 39 states:

No free man is to be arrested, or imprisoned, or disseised, or outlawed, or exiled, or in any way destroyed, nor will we go against him, nor will we send against him, save by the lawful judgement of his peers or by the law of the land.

In this context and the language of the time, “disseised” means dispossessed of property, and “go against” means taking action against them by force of arms. “Law of the land” requires a bit more explanation.

According to Mr. Hannan, the Magna Carta’s reference to “the law of the land” recognized the concept of common law.

Being the law of the land, rather than of the King, Anglo-Saxon common law had four further properties that have served, to this day, to distinguish it from most civil law systems. First, it laid particular emphasis on private ownership and free contract. ... Second, common law is based on the notion that anything not expressly prohibited is legal. There is no need to get the permission of the authorities for a new initiative. Third, the invigilation [keeping watch over or enforcement] of the law of the land was everybody’s business. The policeman was and is a citizen in uniform, not an agent of the state. He has no more legal powers than anyone else, except to the extent that those powers have been temporarily and contingently bestowed on him by a magistrate. ... Finally, and most importantly, the fact that the law was national rather than monarchical implied the need for an ultimate popular tribunal to determine it. [Emphasis added]

This last concept is based upon the principle that only a representative body, such as an elected parliament, should be allowed to determine the common law of England. Mr. Hannan quoted William Blackstone regarding common law:

Since the law is in England the supreme arbiter of every man’s life, liberty, and property, courts of justice must at all times be open to the subject, and the law be duly administered therein. The common law depends not upon the arbitrary will of any judge; but is permanent, fixed, and unchangeable, unless by authority of parliament.

So how has the Magna Carta influenced the United States of America? William Penn, the founder of Pennsylvania, wrote The Excellent Privilege of Liberty and Property: being the birth-right of the Free-Born Subjects of England, where he stated:

In other nations, the mere will of the Prince is Law, his word takes off any man’s head, imposeth taxes, or seizes any man's estate, when, how and as often as he lists. In England, each man has a fixed Fundamental Right born with him, as to freedom of his person and property in his estate, which he cannot be deprived of, but either by his consent, or some crime, for which the law imposed such a penalty or forfeiture.

The final declaration of the first Continental Congress in 1774 listed many of the same grievances addressed by the Magna Carta, such as entitlement to life, liberty and property; freedom from arbitrary taxes; freedom from arrest and trial without due process; taking of property without due process; and most tellingly, entitlement to the common law of England and to the principles of the English constitution, i.e., the Magna Carta.

According to Justice William Brennan:

The first eight amendments to our Federal Constitution, our explicit Bill of Rights, owes its parentage to Magna Carta; and Americans regard the enforcement of those amendments as the Supreme Court’s most important and demanding responsibility.[1]

Specifically, a portion of the Fifth Amendment to our Constitution – “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, ... nor shall be deprived of life, liberty, or property without due process of law” – seems to echo Chapter 39 of the Magna Carta.

Even though King John repudiated the Magna Carta shortly after its creation in 1215, the Great Charter was revised and reissued in 1217 and again in 1297. Even so, 1215 is remembered and celebrated as the birth of the Magna Carta, which is considered by many to be a predecessor or precursor of our U.S. Constitution.

This brings us to the theme of our 2025 celebration of Law Day: “The Constitution’s Promise: Out of Many, One.” The preamble to the Constitution boldly asserts that the framers established the Constitution as representatives of “We the People of the United States, in Order to form a more perfect Union.” The American Bar Association has suggested, and our association has concurred, that Law Day this year will be a celebration and a reminder that: “The Constitution establishes a framework for government that unites us as one citizenry, through means such as our representative government, jury service, and a regular Census. And through this commitment to our Union, we each provide for the common good through government responses to national crises and natural disasters, and through community and advocacy programs for students and adults.”

Our hardworking OBA Law Day Committee and its co-chairs, Ed Wunch and Mary Clement, have planned a great event this year! Please help the committee make this Law Day one of the best ever by and through your personal involvement in the planned activities (and through encouraging citizens with whom you have contact to be involved as well). Visit www.okbar.org/lawday to learn more.

Thank you for your service!

This article was adapted from content that was originally published in the April 2015 issue of the Tulsa Lawyer.

 

D. Kenyon “Ken” Williams Jr. is a shareholder and director at Hall Estill in Tulsa.

---

ENDNOTES

[1] 1985 Rededication Speech at the American Bar Association’s Memorial at Runnymede.

---

Originally published in the Oklahoma Bar Journal – OBJ 96 Vol 4 (April 2025).

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.