Magna Carta (1215)

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Magna Carta (Latin, great charter), one of the enduring symbols of limited government and of the rule of law, was forced upon an unwilling King John by rebellious barons in June of 1215. Since his accession in 1199, John had made enemies at every quarter. The barons resisted heavy taxation exacted to support the king's expensive and unsuccessful wars with the French. Lesser folk complained that royal officials requisitioned, often without payment, food, timber, horses, and carts. Justice in the courts became more sporadic. Quarreling with Pope Innocent III over the election of a new archbishop of Canterbury, John seized church properties, yielding only when the pope threatened to release the English people from their allegiance to the Crown.

By spring of 1215, the barons' discontent had ripened to the point that they formally renounced their allegiance after the king refused their demands that he confirm their liberties by a charter. Under severe pressure, John agreed to meet the barons at Runnymede. There the barons presented a list of demands, the Articles of the Barons, which were then reduced to the form of a charter—the document that later generations came to call Magna Carta.

The charter to which John agreed is an intensely practical document. Rather than being a philosophical tract redolent with lofty generalities, the charter was drafted to provide concrete remedies for specific abuses. Moreover, although the barons were rebelling against the abuse of royal power, they were not seeking to remake the fabric of feudal society. They sought instead to restore customary limits on the power of the Crown, distinguishing between rule according to law and rule by the imposition of arbitrary will.

The barons' interests were essentially selfish. They did not see themselves as disinterested advocates for the common good of the realm. Nevertheless, because the abuses of John's reign touched so many elements of English society, his opponents' demands had implications far beyond the barons' own interests. For example, the charter begins with the declaration that the liberties therein guaranteed run to "all the free men of our kingdom."

Many of Magna Carta's provisions concern feudal relationships having no counterpart in modern times. Certain of the charter's decrees, however, raise issues as vital now as then. Indeed, some of its provisions anticipate rights now embedded in American constitutional law. Among the more relevant are the following:

Chapter 39 declares, "No freed man shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers and by the law of the land." One should not read this language too broadly; for instance, "judgment of his peers" did not mean, as many have supposed, trial by jury. But the requirement of proceedings according to the "law of the land" was significant in the development generally of the rule of law and more specifically of the concept of due process of law. Indeed, "due process of law" and "law of the land" became interchangeable.

Chapter 40 states, "To no one will We sell, to none will We deny or delay, right or justice." Like chapter 39, this provision aimed at curbing abuses in the administration of justice. Several chapters (28, 29, 30, 31) relate to abuses in royal officials' requisitioning of private property and thus are the remote ancestor of the requirement of just compensation in the Fifth Amendment to the United States Constitution. Other chapters (20, 21, 22) require that fines be "according to the measure" of the offense and that fines not be so heavy as to jeopardize one's ability to make a living—reflecting the principle that the criminal law ought not to be administered in a vindictive or unduly oppressive way. Still other provisions deal with the liberties and free customs of cities and towns, with the free flow of commerce, and with church and state—all of these subjects being continuing concerns of American constitutional law.

Beginning with Henry III (who at age nine succeeded John in 1216), king after king reaffirmed Magna Carta. By the end of the fourteenth century, Magna Carta (which had been placed on the statute books in 1297) had established itself as more than a venerable statute; by then it was a fundamental law. In 1368, for example—over 400 years before marbury v. madison (1803)—a statute of Edward III commanded that Magna Carta "be holden and kept in all Points; and if there be any Statute made to the contrary, it shall be holden for none." Here one sees an early germ of the principle contained in the supremacy clause of the United States Constitution.

The political turmoil of seventeenth-century England saw such parliamentarians as Sir edward coke and such pamphleteers as john lilburne ("Free-born John") invoking Magna Carta against the pretensions of the Stuart kings. By the end of that century, climaxed by the Glorious Revolution, three new "liberty documents" had been brought into being to stand alongside Magna Carta as assuring the liberties of the subject—the petition of right (1628), the habeas corpus act (1679), and the bill of rights (1689).

Magna Carta was early carried to the New World. In 1646, some discontented freemen in the Massachusetts colony complained that the laws and liberties they were entitled to as Englishmen were not being enforced. The colony's magistrates responded by drawing up the famous "parallels" of Massachusetts—one column entitled "Magna Charta," the other "fundamentalls of the Massachusetts," the purpose being to argue that the rights assured by Magna Carta and the common law were indeed not denied to the people of Massachusetts. When william penn founded Pennsylvania, he drew upon Magna Carta in drafting the new colony's Frame of Government and, in 1687, was responsible for the first publication in America of Magna Carta.

In the decade between the stamp act (1765) and the outbreak of hostilities with the mother country, Magna Carta became part of the fabric of colonial arguments against British policies. In the petition by the Stamp Act Congress to the king, the Congress declared that both the colonists' right to tax themselves and the right of trial by jury (a right the Crown had circumvented by giving admiralty courts jurisdiction to try cases under the Stamp Act) were "confirmed by the Great Charter of English Liberty."

During the period leading up to revolution, the colonists' arguments, in tracts and resolutions, were essentially eclectic. Appeals to the British Constitution, including Magna Carta, were intertwined with arguments that the colonists' entitlement to such rights as taxation only with their consent were based also on the colonial charters and on natural law. As samuel adams put it, Magna Carta itself was a declaration of Britons' "original, inherent, indefeasible natural rights."

Independence accomplished, the Americans turned to the work of building their own constitutional governments, both state and ultimately federal. The new constitutions reveal both the legacy of British institutions, including Magna Carta, and their perceived limitations. By and large, the contributions of Magna Carta and the other British "liberty" documents are most evident in American bills of rights. Virtually every state constitution has a due process clause, some using the phrase "due process," others using Magna Carta's formulation of "law of the land." For example, the debt owed Magna Carta's chapter 39 is obvious in North Carolina's Declaration of Rights, framed in 1776, "That no freeman ought to be taken, imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the law of the land."

From the outset, however, American constitutional draftsmen understood their handiwork to go beyond Magna Carta. In North Carolina's ratifying convention (1789), james iredell (later to serve on the Supreme Court) called Magna Carta "no constitution" but simply a legislative act, "every article of which the legislature may at any time alter." What Britain lacked, he concluded, the new American constitution supplied.

Throughout the nineteenth century, American courts, both state and federal, commonly invoked Magna Carta in shaping constitutional rights. Thus Magna Carta was relied on in cases involving (to give but a few examples) excessive court costs, open courts and certain remedies, notice and hearing, general application of the laws, and bills of attainder. Gradually, as a corpus of indigenous American law developed, reliance upon Magna Carta became more and more attenuated, indeed largely rhetorical. By the twentieth century, Magna Carta had long since been irrevocably embedded into the fabric of American constitutionalism, both by contributing specific concepts such as due process of law and by being the ultimate symbol of constitutional government under a rule of law.

A. E. Dick Howard


Howard, A.E. Dick 1968 The Road from Runnymede: Magna Carta and Constitutionalism in America. Charlottesville: University Press of Virginia.