THE OKLAHOMA BAR JOURNAL 66 | APRIL 2025 From the President (continued from page 4) 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 AmeriCantaro - stock.adobe.com
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