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The Confederate Lawyer
March 24, 2009

On Liberty
by Charles G. Mills

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 Lexington again.

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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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