The struggle for justice in the civil rights march from Selma to Montgomery: the legacy of the Magna Carta and the common law tradition.

• Author: Nagan, Winston P.
• Position: Faulkner Law Symposium: From the Magna Carta to the March from Selma to Montgomery

Introduction

In March 1964, as the march from Selma to Montgomery was gaining strength in the face of threats of violence, repression and intimidation, Sister Pollard, a 70-year-old African-American woman in the march was offered a ride because of her age. She replied, "No," adding, "my feets is tired, but my soul is rested." Sister Pollard's response captured the quintessence of a Christian, and perhaps more generally, a religious view of the struggle for justice and the religious idealism embodied in the idea of a rested soul that sustains the struggle. Sister Pollard's response is also a testament to the idea that struggle for the highest ideals of religious consciousness embodies sacrifice and courage.

The march on Montgomery was a momentous event of national and global significance. It was an aspect of a larger, national struggle, and was of global importance for the improvement of the human prospect, and, I think, today would be rightly regarded as a powerful symbol for the interdependence of human rights and legal justice. The idea of justice in human history is often grounded in, and expanded by, events whose times have come and these events generate a powerful symbology of the progress of justice. The march from Selma to Montgomery was just such an event.

Magna Carta, Justice, and the Rule of Law

I want us to step back in time to another momentous historical event in England. In 1215, King John, the monarch of England, signed the Magna Carta. The Magna Carta was the outcome of momentous events. These events resulted in the compulsion or coercion generated by the conspicuous classes in England and imposed upon a king steeped in the belief of sovereign absolutism. The central idea in the Magna Carta was to stipulate, and publicize in writing the specific limitations on the sovereign, vis-a-vis the nobility and freemen. The principle of establishing a great charter limiting arbitrary abuse of power represented an idea that even the sovereign could not violate Magna Carta prescriptions or those elements of the common law derived from those prescriptions. The most important clause for historical posterity was the 39th clause of the Magna Carta. This clause provided, "no free man shall be arrested or imprisoned ... except by the lawful judgment of his peers or the law of the land." The word "or" was meant to mean "and." The habeas corpus prescription in the Magna Carta was included in the Constitution of the United States. (2) Indeed, this ancient writ included in the Magna Carta continues to form one of the foundations of the modern rule of law concept. Most recently, the Supreme Court of the United States again recognized that the "writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action." (3) The quote continued that the writ must "be administered with initiative and flexibility to insure that miscarriages of justice are surfaced and corrected." (4) Indeed, Chief Justice Marshall wrote in 1830 that the "great object" of the writ, "is the liberation of those who may be imprisoned without sufficient cause." (5) In Boumediene v. Bush, the Supreme Court ruled that Guantanamo detainees have the right to file habeas corpus petitions. (6)

The writ of habeas corpus has been a part of the development of the common law and the idea of the supremacy of the common law in defining the rights and duties of the citizen. In the development of the common law and its procedural practices, including the forms of action, the leading English jurists determined that the foundations of the modern rule of law were to be found in the interstices of the common law itself. Establishing the supremacy of the law itself, although deeply influenced by the Magna Carta, was a major historical challenge, which required courage and bravery from both judges and practitioners.

The common law, which developed in England in the aftermath of the Magna Carta, is in many ways a legal system that improved upon the rights and the duties of the subjects of the kingdom. It is important to note, an obvious datum that when the citizen's rights and obligations are matters that are publically ascertainable and enforced by an independent judicial system, the law provides the citizen with a zone, which secures both his freedom and the scope of his obligations. The common law empowered the citizen with an opportunity to request a writ from the King. The writ was a requirement for the plaintiff to avail himself of the Royal or King's Court. The writ represented the command of the King, which enabled him to do so. Although writs originally were exceptional, by the time of Henry II, they became routinized. It was from the writs that the forms of action were created. Ultimately, there was resistance to creating new forms of action and lawyers were generally confined to the recognized categories, which formed the common law formulary system. The importance of the forms of action was that they were very specific; hence, a decision based on the forms of action would be case specific. This meant that rights and duties created were concrete and formed the basis for the application of those rights to similar situations. Therefore, the forms of action generated a fidelity to the role of precedent. Here we see the fact-specific detail in legal development that is difficult to change by arbitrary executive action. The applications of the forms of action are highly technical and professionalized, an added buffer to the experience of arbitrary executive action. It is in this detailed professional sense that we see an important domain in the development of freedom based on the rule of law. Although the forms of action were abolished, the great historian, Maitland, suggested that they still rule the legal culture "from their graves." (7) It should be noted that in the practice of law in the United States today, a multitude of writs still survive, such as the Writ of Habeas Corpus (8), the writ of certiorari, the writ of prohibition, the writ of error coram nobis, the writ of mandamus, the writ quo warranto, and a number of other writs.

The importance of the Magna Carta for the enduring relationship of law and the ideal of justice is found in the principle that the sovereignty of the monarch is limited by law. Hence, we have the establishment in the great charter of the principle of the supremacy of law. The text of the Magna Carta is a text largely concerned with the complex rights of the various social classes in a feudal system. Notwithstanding, the principle of habeus corpus which emerges from this system continues to endure today as a central principle of the modern rule of law. Additionally, the specification and detailing of rights and obligations in the feudal context reflects the deep concern for the normative salience of the principle of human liberty. The Magna Carta stipulates not only the liberty of the Christian faith but also the liberties of all free men. Thus, liberty, including religious liberty, is a restraint on sovereign absolutism. Additionally, many of the rules specified in the Magna Carta are rules that deal with human security, and hence represent the principle that free men should be free from fear under law. Many of these rules deal with the complexities of fair management of economic entitlements and in particular, suggest a sensitivity that the law provide protections from the freedom from want. Finally, in the concern for the liberty of the English Church we see a sensitivity to the freedom of conscience and belief. In this sense, although the Magna Carta is a document that deals with the exigencies of the appropriate management of feudal life in England, it contains the seeds of justice that endorse a natural law conception of the fundamentals of the rule of law.

THE JUDGES VS. THE MONARCHY

One of the important outcomes in the development of rule-of-law based freedom in the common law tradition, influenced by the Magna Carta, was represented in the conflict between the English judges and the Crown. This is illustrated in the behavior of Sir Edward Coke, which is best demonstrated in Dr. Bonham's case decided in 1610. Bonham was a physician practicing in London. He had a medical degree from a top university, but did not have a license to practice medicine. Bonham was fined for practicing medicine without the license. The Royal College of Physicians arrested, tried, and fined Bonham. The fine was to be paid to the Royal College of Physicians. Coke ruled that the Royal College could not sit as a complainant and act as a judge in its own cause. Coke stated the following:

The common law doth control Acts of Parliament, and sometimes adjudge them to be void: for when an Act of Parliament is against Common right and reason, or repugnant, or impossible to be performed, the Common Law will control it, and adjudge such Act to be void.... (9) Just prior to deciding Bonham, Coke was asked by the King to rule on whether a royal edict, which sought to restrict building in London and to regulate trade of specific commodities, would be consistent with the law. According to Coke, "[T]he King cannot change any part of the common law, nor create any offence by his proclamation, which was not an offence before, without Parliament" (10) Coke challenged the King in this and other contexts. The King, in return, had him arrested and put into the Tower of London, but Coke was later freed.

Coke was largely supported by the English Parliament, which acted to preserve his legacy. What is important for the United States is that Coke's works were read by American lawyers before the Revolution. Moreover, the leading precedent in the common law world on the principle of judicial review, (11) without a doubt, was influenced by Coke's daring assertion of the supremacy of the common law. Indeed Coke has been cited by American judges and statesmen throughout the history of the Republic...