Preserving Legal History

Author: 
Dick Helmholz

image of Sotheby's auction

The Law School can be proud of its many public-spirited graduates. In particular it can be proud of David Rubenstein, ‘73, who recently made headlines by purchasing the only copy of Magna Carta remaining in private hands and donating it to the National Archives for continuing public exhibit.  It was an act both generous and far-sighted on his part.  It must also have been an exciting one, as anyone who has ever bid in a spirited auction has reason to remember.

The copy purchased by Mr. Rubenstein was not the more famous version of 1215 extorted at Runnymeade from King John.  It is rather the confirmation and reissue of 1297.  This deserves a comment.  A confirmation might seem of lesser importance than the earlier version, but in fact a good case can be made that the later version has been of greater lasting significance.  It was the 1297 version that was put into the books as the first English statute, and it was this version that Sir Edward Coke and his fellow lawyers meant when they described Magna Carta as “the fountain of all the fundamental laws of the realm.”  It was the 1297 version that William Blackstone had in mind when he wrote that the Great Charter “protected every individual of the nation in the free enjoyment of his life, his liberty and his property.”  It was to this same version that Daniel Webster referred in his argument in the Dartmouth College Case.  Magna Carta was several times confirmed, and also amended, during the course of the thirteenth century, but it is the version purchased by Mr. Rubenstein that has had the greatest staying power.  If America can have only one copy, this is the right one.

Over the years critical historians have sought to debunk the Charter’s importance.  They have said that 1297 version of the Great Charter, no less than that of 1215, was the product of baronial self-interest.  Sidney Painter, the meticulous historian who taught at Johns Hopkins, once spoke of it as a signal of “the all-consuming greed of the barons.”  There may be something to this.  Both the 1215 and the 1297 versions grew out of baronial unhappiness as the monarch’s ill-advised attempts to curtail what the barons regarded as their liberties.  Both documents did in fact protect baronial interests.  But the motivation behind the Charter cannot have been so simple.  It also protected the interests of merchants, children, villages and towns, and indeed all freemen.  It sought to establish that all men, including the king and the barons themselves, were subject to the law of the land.  Magna Carta was not regarded as limited to a list of specific problems it corrected, and that has turned out to be one of its strengths.  The Charter’s baronial drafters could not have foreseen the uses to which their efforts would later be put, but I think they would have expected and applauded its wider application.  Mr. Rubenstein deserves our thanks for having provided America with this most tangible reminder of the antiquity and persistent strength of our liberties.

Dick Helmholz is Ruth Wyatt Rosenson Distinguished Service Professor of Law at the University of Chicago Law School.

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