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document learn as originally to oniy thirty-seven chapters as worthy of being guarantee of freedom to the English Church as held “in perpetuum.” The first chapter, in every a direct forebear of our constitutional security version, promised that “the English Church for religious freedom. shall be free.” The remainder of the document is a grant There is a complicated history here: “to all the free-men of our kingdom, for us John’s refusal in 1207 to receive Pope Innocent and for our heirs forever, [of] all the under iii’s choice for archbishop of Canterbury, written liberties to be had and held by them Stephen Langton, and by their heirs, of us and of our heirs.” led to England’s The first batch largely removes the king from being placed under interference with inheritance or with the papal interdict and, remarriage of widows. The “ancient liberties” eventually, to the and “free customs” of the city of London and excommunication of all other cities, burghs, towns, and ports are John himself. in 1213 secured; they are freed as well from being John and the pope forced to build bridges or embankments. were reconciled and Later on, a uniform measure throughout the Langton was admitted kingdom is promised for wine, ale, corn, and to his post. The cloth, and in several chapters the liberties of charter seems to ratify merchants are protected. Feudal duties are this arrangement— for the most part returned to how they stood Langton, in fact, being in the reign of Henry II, and in general are among the barons defined and moderated. Constables, bailiffs, and in some accounts and sheriffs are circumscribed in their powers considered the by a number of chapters, particularly in their Magna Carta cum Stat utis likel author of the ability to seize the subjects’ land or goods, Ang zae, (Great C arter wit whether in collection of debts or to satisfy the Eng’ish Statutes) page one of charter itself, written manuscript, fourteenth century. as it was in Latin. king’s desires. In the original version, though Within the year the not in the reissues, the king even promises, pope suspended Langton and allowed John “We will not make men justices, constables, to repudiate the Great Charter he had just sheriffs, or bailiffs unless they are such as granted, but his death soon after occasioned know the law of the realm, and are minded to Langton’s restoration and the charter’s reissue. observe it rightly” (ch. 45). While such tergiversations between medieval The most famous passages, however, are popes and monarchs were not uncommon, the those that concern judicial procedure. The whole sequence cautions against reading the Court of Common Pleas, the king’s chief court of common law regarding land, will I300s. Still, the text makes clear that something no longer travel among the king’s courtiers like a jury—the “judgment of his peers”—was but “shall be held in any certain place” (soon already employed. Nor was this a privilege Westminster is so designated). Fines will reserved to the nobles, the peers of the realm; it be laid on both commoner and peer “only is explicitly extended to all free men, not only according to the degree of the offense.” Since in this famous chapter, but in the preface to all trial by ordeal had been banned by the Fourth the chapters after the first, quoted previously. Lateran Council, also in 1215, “No Bailiff, for This point bears underlining, for the the future, shall put any man to his open law extension of protection to all free men—Coke
• without faithful witnesses produced for goes so far as to say this includes even villeins that purpose” (ch. 28). Finally, in chapter 29 (or serfs), except in relation to the lord of their in the original), come the phrases that most manor—distinguished Magna Carta from most resonate with the ages: other legal documents in feudal times. That this can be explained by King John’s peculiar No Free-man shall be taken, or success in turning all ranks and degrees imprisoned, or dispossessed, of his against him—so that town and country, lord free tenement, or liberties, or free and freeman, layman and clergy all stood customs, or be outlawed, or exiled, together at Runnymede—does not diminish or in anyway destroyed; nor will we the achievement. Rather than limit its reach condemn him, nor will we commit to feudal principles grounded in reciprocity— him to prison, excepting by the legal protection in exchange for homage and judgment of his peers, or by the law service—Magna Carta’s broad guarantee of the land. — To none will we sell, against condemnation and imprisonment to none will we deny, to none will we delay right or justice. • ather than limit its reach to feudal By the seventeenth century, the most principles grounded in reciprocity— authoritative interpreter of the common law, Sir Edward Coke, will equate the promise of protection in exchange for homage and this passage with the guarantee of “due process service—Magna Carta’s broad guarantee of law,” complete from indictment by grand against condemnation and imprisonment jury to conviction by a jury of twelve. Scholars except through the action of law suggested now agree that this reads the present back into the past beyond warrant, since trial by jury a limitation, by law, on monarchy itself. did not emerge in its modern form until the the
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Indeed, to say that Magna Carta What no one doubts is that Magna was given statutory form and placed at the Carta returns to the forefront of English head of English statutes in 1297 means that constitutional debate in the seventeenth the parliamentary statute had come of age, century, and that the leading figure in its the charter itself having been in place for four revival is the same Sir Edward Coke. In the score years. widely read prefaces to his Reports, in his Holt documents how the various actions in parliament formulating the Petition provisions of the charter found their way of Right, and in his Second Institutes, Coke gave into other statutes and into legal practices Magna Carta pride of place as the guarantor of increasingly fixed in common law precedents. English liberty and the authoritative voice of As Ellis Sandoz argues, Sir John Fortescue’s the common law on matters we today would celebrated account In Praise of the Laws of call constitutional. While the commentary England in the mid-fifteenth century has on Magna Carta in his Institutes runs almost absorbed Magna Carta and its meaning into eighty pages—and serves at once to lend the distinction between political and regal the prestige of common law to the charter government on the one hand and merely regal and the authority of the charter to common government on the other. “For who can be law—Coke’s text had been seized by the crown more powerful and freer than he who is able shortly before his death and was not published to restrain not oniy others but also himself? until the 164os. More immediately important The king ruling his people politically can was the reference to Magna Carta in the i6z8 and always does do this,” writes Fortescue, at Petition of Right. Occasioned as a protest of the end of a lengthy discussion of the virtues the king’s forced loans, the petition indicts of the English jury—by his time the legal as well the whole practice of imprisonment embodiment of the principle of judgment by without cause; it is condemned explicitly as a one’s peers. violation of chapter 29 of Magna Carta, said to be a violation of due process of law, and power and in its claim that “all and singular shown to be in defiance of judicially issued the rights and liberties asserted and claimed writs of habeas corpus. In fact, Coke and his in the said declaration are the true, ancient, contemporaries sometimes wrote as though and indubitable rights and liberties of the any act or statute made in defiance of Magna people of this kingdom.” As late as 1765, Carta was null and void. William Blackstone refers to Magna Carta, the Petition of Right, the Habeas Corpus Act, the Bill of Rights, and the Act of Settlement as the summation of the law of English liberty—which, in his hands, the sovereignty of parliament was meant to confirm and elaborate, not abrogate or change. Today in Great Britain it is sometimes said that, as a result of parliamentary action, only three provisions of Magna Carta retain legal force: the guarantee of the church’s freedom, the protection of the liberties of London, and the famous chapter 29. And j indeed, no one doubts that parliamentary The bishopof Lincolnwas oneof the signatoriesto sovereignty made Magna Carta the creature Magna Carta, andfor hundredsofyears, LincolnCathedral has heldoneof thefour remainingoriginalcopies. of parliament. Still, as recently as 2008, the chancellor of England, Jack Straw, could Coke died in 1634, well before parliament deliver a speech in the United States called went to arms against the king, and there is “Modernizing the Magna Carta,” concluding plenty in his writings to distance him from with a call for a British Bill of Rights and the Roundheads. Nor would he, like the Responsibilities which might be “a step Leveller John Lilburne, have used Magna towards a fully written constitution, which Carta to argue against rank and privilege per would bring us in line with most progressive Se. Nevertheless, Coke’s legacy is evident democracies around the world.” in the Habeas Corpus Act of 1679 and in In America, as these remarks suggest, the English Bill of Rights a decade later, the course of constitutional development was with their emphasis on due process in the very different. As A. E. Dick Howard, John courts of justice. The echo of Magna Carta Philip Reid, and Donald Lutz, among others, is unmistakable in the enumeration in the have shown, American colonists from the first bill of specific rights against the abuse of moment of settlement jealously claimed their I
right to English liberties and to the common The “good old” spirit of resistance to law that secured them, and they frequently arbitrary authority in the name of the “good referred to Magna Carta as a model and a old” law was evident in the Stamp Act source. While the British moved away from controversy in 1765 and throughout the period ancient law toward a sovereign parliament in of the Revolution. Even the Declaration of the eighteenth century, the Americans, who Independence, after its theoretical discussion experienced parliament as a foreign power of the laws of nature and the rights of within which they had no representation but men, enumerated specific grievances in the whose taxes and trade regulations they were language of the English constitution, going expected to endure, seemed to move in the so far as to accuse parliament of passing opposite direction. Although their polities “acts of pretended legislation,” “foreign to were newly made and much of ancient law our Constitution, and unacknowledged by was inapplicable among them—especially our laws”—a phrase which, in 1776, could in New England, where primogeniture and only refer to a constitution of British North entail never were established, but even in America, unwritten in the modern sense but Virginia, where no titled local nobility was ever formed—the colonists clung to their assemblies as if they were part of an ancient /merican colonists from the first constitution, and they interpreted efforts by the English ministry to modernize the moment of settlement jealously claimed empire as an infringement on traditional their right to English liberties and to the rights. The British, seeking to adapt to the common law that secured them, and they aspirations of a modern, democratizing age, frequently referred to Magna Carta as a weaned themselves from Magna Carta. The Americans, “born equal, instead of becoming model and a source. so,” in Tocqueville’s phrase, found in Magna Carta a symbol of political liberty, silently ignoring its feudal excrescences and adopting anchored in a tradition that extended back to the common law insofar as it was, in the later the Great Charter. When in the aftermath words of Joseph Story, “applicable to the of declaring independence Americans turned situation of the colony, and. . . not. . . altered, to writing constitutions for themselves, they repealed, or modified by any of our subsequent included enumerated bills of rights on the legislation.” The Americans eventually traditional model, often adopting specific established many of the charter’s provisions in passages from the English tradition even while written constitutions of their own. adding a liberty of conscience and religious exercise then scarcely recognized overseas. common law but reintroduced in the colonies Principles from Magna Carta abounded as if from the Roman past. It is no accident in their new systems: no taxation without that, when the slave power was defeated by consent, executive action subject to legal force of arms, the constitutional results were limitation, no imprisonment without a trial, registered in an amendment that included a trial by jury, recognition of local liberties. new “due process” clause, now limiting by And one passage is preserved verbatim, the federal law the actions of the states. Modern phrase “law of the land,” which can be found analysts typically decry the use of that clause in some of the state constitutions and may be by the courts to enforce liberties associated discerned, in the form of “due process of law,” with economic life, but in fact the argument in the federal Bill of Rights. had traditional resonance: Coke in his Institutes Magna Carta came about when all the interprets the phrase “liberties” in chapter 29 ranks of society came together to restrain to mean that “all monopolies are against the arbitrary action by the king. How could such a great Charter, because they are against the precedent apply to government by the people liberty and freedom of the Subject, and against themselves? Americans came very quickly the Law of the Land.” to recognize, in Jefferson’s terms, that “an To take the story much further would elective despotism was not the government involve us in the politics of the present. But it we fought for,” that sovereign power could is worth asking when, if ever, our fundamental be abused in the hands of the people as surely law changed from being an enumeration of as in the hands of a prince. In retrospect, the powers and liberties to a partisan tool of one clearest abuse of the new democracies was side or the other—and whether, like the people the support that many of them gave to the at Runnymede, we remain empowered to institution of slavery—itself unknown at reclaim this inheritance as our own.
RESOURCES 7AMES R. STONER JR. (Ph.D., Harvard J. C. Holt, Magna Carta (Cambridge: Cambridge University Press, 1965) / University, 1987) is a professor of political science at Louisiana State University and author of Common A. E. Dick Howard, The Roadfrom Runnymede (Charlottesville:The University Pressof Virginia, 1968) Law and Liberal Therny: Coke, Hobbes, and the Origins EllisSandoz,ed.,The RootsofLiberty:Magna Carta, of American Constitutionalism. He served from 2002 AncientConstitution,andtheAnglo-AmericanTradition to zoo6 on the National Council on the Humanities, oftheRuleofLaw(Columbia:University of Missouri to which he was appointed by President George W. Press, 1993) Bush. He is an 151faculty associate. Steve Sheppard,ed., The SelectedWritings of Sir Edward
Coke (Indianapolis: Liberty Fund, Inc., 2003), 3 vols.