Free Greece, Rome, and the Bill of Rights by Susan Ford Wiltshire Page A

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."
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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