Magnacharta

The document that has come to be known as Magna Charta (spelled variously as "charta" or "carta"), or Great Charter, is recognized as a fundamental part of the English constitutional tradition. Although it is not a constitution, it contains provisions on criminal law that were incorporated into the Bill of Rights of the U.S. Constitution.

In 1215 King John of England (1199–1216) fought more than forty English barons and their followers in a civil war. The king had angered the barons by extracting revenues based on their feudal obligations in order to fight a war in France. After John lost the war, the barons rebelled against the king.

The rebels first demanded that the king confirm the Charter of Henry I, a coronation charter from 1100 in which King Henry I had promised to abolish all evil customs that oppressed the realm. Additional grievances were added to the charter, which King John was forced to accept at Runnymede in June 1215, after the rebels occupied London.

Magna Charta contains sixty-three chapters. Many of the chapters defined the king's feudal rights over his vassals, preventing the king from arbitrarily collecting revenue from the barons. Chapter 39 established the right to due process of law, and in chapter 40 the king promised that he would not sell, deny, or delay justice to anyone.

Magna Charta did not resolve the dispute between the barons and King John. Within months they were fighting again. In August 1215 the charter was annulled by Pope Innocent III, John's feudal overlord, on the grounds that it had been executed under duress. In 1216, however, after John's death the charter was reissued with some modifications. At the conclusion of the civil war in 1217, it was reissued again with minor revisions. This version of Magna Charta became part of the English constitutional tradition; confirmed by later kings and interpreted by Parliament, it is still revered as a symbol of English liberties.

Magna Charta

John, by the grace of God, king of England, lord of Ireland, duke of Normandy and Aquitaine, count of Anjou, to all his archbishops, bishops, abbots, earls, barons, justiciars, foresters, sheriffs, stewards, servants, and all bailiffs and faithful men, health. Know that we by looking to God, and for the health of our soul, and of all our ancestors and heirs, to the honor of God, and the exaltation of his holy Church, and the rectifying of our realm by the counsel of our venerable fathers, Stephen, archbishop of Canterbury, primate of all England and cardinal of the holy Roman Church; Henry, archbishop of Dublin; William of London, Peter of Winchester, Joscelin of Bath and Glastonbury, Hugh of Lincoln, Walter of Worcester, William of Coventry and Benedict of Rochester, bishops; Master Pandulf, subdeacon of our lord pope and servant; brother Eymeric, master of the knights of the Temple in England; and of nobles, William Marshall, Earl of Pembroke; William, Earl of Salisbury; William, Earl Warrenne; William, Earl of Arundel; Alan of Galway, constable of Scotland; Warin, son of Gerold; Peter, son of Herbert; Hubert de Burg, seneschal of Poitou; Hugh de Neville; Matthew, son of Herbert; Thomas Basset; Alan Basset; Philip de Albini; Robert de Ropley; John Marshall; John, son of Hugh; and others our lieges.

CHAPTER 1

First, we grant to God, and by this our present charter we confirm, for us and our heirs forever, that the English church be free, and have its rights whole and its liberties unimpaired; and so we will to be observed, which appears from the fact that we have of pure and free will, before difference arose between us and our barons, granted, and by our charter confirmed, freedom of elections, which is conceived greatest and most necessary for the English church, and have got it confirmed from our lord Pope Innocent III, which we will observe ourselves and will to be observed in good faith by our heirs forever.¹ We have granted to all free men of our realm, for ourself and our heirs forever, all these underwritten liberties to have and to hold, for themselves and their heirs, from us and our heirs.

CHAPTER 2

If any of our earls or barons, or other tenant of us in chief by military service, die, and when he dies, his heir be of full age, and owe a relief, he shall have his inheritance by the old relief, to wit, the heir, or heirs of an earl, for the whole barony of an earl by P100; the heir or heirs of a baron, the whole barony by P100; the heir or heirs of a knight for a whole military fee by 100s. at most, and he who owes less should pay less according to the ancient custom of fees.

CHAPTER 3

If the heir of any of these be below age, and be in wardship, when he comes to full age he shall have his inheritance without relief or fine.

CHAPTER 4

The guardians of the land of any heir, who is below age, shall not take from the land of the heir more than reasonable exits [revenues], and reasonable customs, and reasonable services, and this without destruction and waste of men or property; and if we commit the wardship of any such land to the sheriff or any one else, who is to answer to us for the exits, and he made destruction or waste of his wardship, we will take recompense of him, and the land shall be committed to two lawful and discreet men of that fee, who will answer to us of the exits, or to him to whom we have assigned them; and if we have given or sold to any one the wardship of any such land, and he does destruction or waste, he shall lose his wardship, and give it to two lawful and discreet men of that fee, who shall in like manner answer to us as is aforesaid.

CHAPTER 5

The guardian, as long as he have wardship of the land, shall keep up houses, parks, stews, pools, mills, and other things belonging to that land, from the exits of the same land, and restore to the heir, when he comes to full age, all that land stocked with teams, according to what the season of teams demands, and the exits of the land can reasonably sustain.²

CHAPTER 6

Heirs shall be married without disparagement, so that before they contract matrimony it be communicated to the kinsmen in blood of the heir.

CHAPTER 7

A widow after the death of her husband shall at once and without hindrance have her marriage and inheritance, nor give anything for her dower, or for her marriage, or for her inheritance, which inheritance she and her husband had on the day of her husband's death, and she shall remain in her husband's home for forty days after his death, within which her dower shall be assigned to her.³

Source: Selections from The Second Treatise on Government, 5 J. Locke, WORKS (1823). The footnotes have been renumbered.

¹ The full text of the Charter of 1215 has been included here. Sections that were omitted in later versions of the charter are printed in italic type on this and subsequent pages. Unless otherwise indicated, the omissions were made in 1216. Important alterations and additions have been indicated in the notes.

² A clause added in 1216 stipulated that the chapter also applied to ecclesiastical properties except that those wardships should not be sold.

³ In 1217 a clause was added that guaranteed a widow one-third of her husband's lands unless a smaller dower had been assigned at the time of the marriage. In 1225 chapters 7 and 8 were combined into one.

CHAPTER 8

No widow shall be forced to marry as long as she wills to live without a husband, so that she give security that she will not marry without our assent, if she hold from us, or without the assent of the lord from whom she holds, if she holds from another.

CHAPTER 9

Neither we nor our bailiffs will seize any land or rent for any debt, as long as the chattels of the debtor suffice for paying the debt, nor shall the sureties of the debtor be distrained, as long as that debtor in chief suffices for the payment of the debt, and if the debtor in chief fail in paying the debt, not having whence to pay, the sureties shall answer for the debt, and if they will, shall have the land and rents of the debtor till they are satisfied of the debt which they paid for him, unless the debtor in chief show that he is quit thence against these sureties.

CHAPTER 10

If anyone borrows anything from the Jews, more or less, and dies before the debt is paid, the debt shall not bear usury as long as the heir is under age, from whoever he holds it, and if that debt fall into our hands we will take only the chattel contained in the deed.

CHAPTER 11

And if anyone die and owes a debt to the Jews, his wife shall have her dower and pay nothing of that debt, and if the children of the dead man are under age, necessaries shall be provided for them according to the holding of the dead man, and the debt shall be paid from the residue, the service of the lords saved, and in the same way shall it be done with debts which are owed to other than Jews.

CHAPTER 12

No scutage or aid shall be laid on our realm except by the common counsel of our realm, unless for ransoming our person, and making our eldest son a knight, and marrying our eldest daughter once, and this must only be a reasonable aid, and so shall it be with the aids of the city of London.

CHAPTER 13

And the city of London shall have all its ancient liberties and its free customs, both by land and by water. Besides we will and grant that all other cities, and burghs [boroughs], and vills [towns], and ports shall have all their liberties and free customs.

CHAPTER 14

And to have a common counsel of our realm on assessing an aid other than in the three aforenamed cases, or assessing a scutage, we will cause to be summoned archbishops, bishops, abbots, earls, and greater barons, singly by our letters, and we will also cause to be summoned in general, by our sheriffs and bailiffs, all those who hold of us in chief, at a certain day, to wit, at least forty days after, and a certain place; and in all letters of summons we will express the cause of summons, and when summons is made the business assigned for the day shall proceed according to the council of those who are present, though not all who are summoned come.

CHAPTER 15

We will grant to no one in future that he take aid from his free men, except to ransom his person, to make his eldest son a knight, and to marry his eldest daughter once, and for this there shall only be a reasonable aid.

CHAPTER 16

No one shall be distrained to do a greater service for a knight's fee, or any other frank [free] tenement than is due from it.

CHAPTER 17

Common pleas shall not follow our court, but shall be held in some certain place.

CHAPTER 18

Recognizances of novel disseisin, mort d'ancestor, and darrein presentment shall not be taken except in their own counties and in this manner; we, or, if we be out of the realm, our chief justiciar, will send two justices to each county four times in the year, who, with four knights of each county, elected by the county, shall take in the county and day and place the aforenamed assises of the county.⁴

⁴ In 1217 the text was changed to say that justices (number unspecified) would be sent through each county once a year to hold assises with knights of the county (number unspecified). A separate chapter was created that stipulated that assises involving darrein presentment should always be held before the justices of the bench.

CHAPTER 19

And if the aforesaid assises of the county cannot be taken on that day, so many knights and free tenants shall remain of those who were at the county on that day, by whom judgments can be sufficiently effected, according as the business is great or small.

CHAPTER 20

A free man shall not be amerced for a small offense unless according to the measure of the offense, and for a great offense he shall be amerced according to the greatness of the offense, saving his tenement, and the merchant in the same manner, saving his merchandise, and the villein shall be amerced in the same manner, saving his tools of husbandry, if they fall into our mercy, and none of the aforenamed mercies shall be imposed except by the oath of reputable men of the vicinage.

CHAPTER 21

Earls and barons shall not be amerced but by their equals, and only according to the measure of the offense.

CHAPTER 22

No cleric shall be amerced of his lay tenement, except according to the measure of the other aforesaid, and not according to the size of his ecclesiastical benefice.⁵

CHAPTER 23

No vill or man shall be distrained to make bridges at rivers, unless he who of old, or by right, is bound to do so.

CHAPTER 24

No sheriff, constable, coroners, or others of our bailiffs shall hold pleas of our crown.

CHAPTER 25

All counties, hundreds, wapentakes, and ridings shall be at the old farms [rents] without any increase, saving the manors of our demesne.

CHAPTER 26

If anyone holding a lay fee [fief] of us dies, and the sheriff or our bailiff shows our letters patent of the summonses of a debt which the dead man owed us, it shall be lawful for our sheriff or bailiff to attach and enroll the chattels of the dead man found in this fee to the value of the debt by the view of lawful men, so that nothing be moved thence till our debt which is clear be paid us, and the residue shall be left to the executors to fulfill the testament of the deceased, and if nothing be owed us by the deceased, all his chattels shall go to the deceased, save the reasonable shares to his wife and children.

CHAPTER 27

If any free man die intestate, his chattels shall be distributed by his nearest relations and friends, by the view of the church, save the debts due to each which the deceased owed.

CHAPTER 28

No constable, or other bailiff of ours, shall take the corn or chattels of anyone, unless he forthwith pays money for them, or can have any respite by the good will of the seller.⁶

CHAPTER 29

No constable shall distrain any knight to give money for the wardship of a castle [military service in the garrison of a castle], if he be willing to perform that wardship in his own person, or by some other reputable man, if he cannot do it himself for some reasonable cause, and if we have led or sent him to an army, he shall be quit of the wardship, according to the length of time that he is with us in the army.

CHAPTER 30

No sheriff or bailiff of ours, or any other, shall take horses and carts of any free man for carrying, except by the will of the free man.⁷

CHAPTER 31

Neither we nor our bailiffs will take any wood for our castles, or other our works, except by consent of the man whose wood it is.

⁵ In 1225 chapters 20, 21, and 22 were combined in a single chapter.

⁶ In 1216 the chapter was modified to say that constables and their bailiffs should not take the goods of anyone who is not from the village where the castle is located unless they pay cash or make arrangements to pay later; persons from the village should be paid in three weeks. In 1217 the three weeks was changed to forty days.

⁷ In 1216 the chapter was modified to say that the horses and carts should not be taken unless the owner received a specified amount of money. In 1217 a chapter was inserted that prohibited bailiffs from taking carts from the demesne of a cleric, a knight, or a lady. In 1225 chapters 30 and 31 from the Charter of 1215 and the new chapter were combined into a single chapter.

CHAPTER 32

We will not hold the lands of those who are convict of felony, except for one year and one day, and then the lands shall be returned to the lords of the fees.

CHAPTER 33

All kidells [fish-weirs] shall for the future be wholly taken away from the Thames and the Medway, and through all England, except at the coast of the sea.

CHAPTER 34

The writ which is called praecipe for the future shall not issue to anyone about any tenement from which a free man may lose his court.

CHAPTER 35

There shall be one measure of wine throughout our whole realm, and one measure of beer, and one measure of corn, to wit, the London quarter, and one breadth of dyed cloth, and russet and haberget cloth, to wit, two ells within the lists, and of weights it shall be as of measures.

CHAPTER 36

Nothing shall be given or taken hereafter for the writ of inquisition on life or limb, but it shall be granted freely, and not denied.

CHAPTER 37

If anyone holds of us by fee-farm, either by socage or by burgage, or of any other land by military service, we shall not have the wardship of the heir or his land which belongs to another's fee, because of that fee-farm, or socage or burgage, nor shall we have wardship of that fee-farm, or socage or burgage, unless the fee-farm itself owes military service. We shall not either have wardship of heir or any land, which he holds of another by military service, by reason of some petty serjeanty which he holds of us, by the service of paying us knives, or arrows, or the like.

CHAPTER 38

No bailiff in future shall put anyone to law by his mere word, without trustworthy witnesses brought forward for it.

CHAPTER 39

No free man shall be seized, or imprisoned, or disseised, or outlawed, or exiled, or injured in any way, nor will we enter on him or send against him except by the lawful judgment of his peers, or by the law of the land.⁸

CHAPTER 40

We will sell to no one, or deny to no one, or put off right or justice.

CHAPTER 41

All merchants shall have safe conduct and security to go out of England or come into England, and to stay in, and go through England, both by land and water, for buying or selling, without any evil tolls, by old and right customs, except in time of war; and if they be of the land at war against us, and if such shall be found in our land, at the beginning of war, they shall be attached without loss of person or property, until it be known by us or our chief justiciar how the merchants of our land are treated who are found then in the land at war with us; and if ours be safe there, others shall be safe here.⁹

CHAPTER 42

It shall be lawful for anyone hereafter to go out of our realm, and return, safe and sound, by land or by water, saving fealty to us, except in time of war for some short time, for the common weal of the realm, except imprisoned men, and outlaws according to the law of the realm, and as natives of a land at war against us, and to the merchants of whom is done as is aforesaid.

CHAPTER 43

If any person holds of any escheat, as of the honor of Wallingford, Nottingham, Boulogne, Lancaster, or of other escheats which are in our hands, and they are baronies, and he dies, his heir shall not pay any other relief, or do us any other service but that which he would do for the baron, if the barony were in the hand of a baron, and we similarly will hold him in the same way that the baron held him.¹⁰

⁸ In 1217 the words "of his freehold liberties or free customs" were inserted after "disseised." In 1225 the words "in the future" were inserted after "No free man shall," and the chapter and the one following it were joined together.

⁹ In 1216 the words "unless formerly they have been publicly prohibited" were inserted after "All merchants."

¹⁰ In 1217 a sentence added at the end of the chapter stipulated that the king would not have an escheat or wardship by reason of such an escheat or barony unless the person who held the property was a tenant-in-chief for other property.

¹¹ Chapter 44 of the Charter of 1215 was retained in the Charter of 1216, but in 1217 it was transferred to the separate Charter of the Forest. In 1217 a new chapter was inserted at this point that stipulated that no free man should give or sell so much of his land that he would be prevented from doing the full service due from the fief.

CHAPTER 44

Men who dwell without the forest shall not come hereafter before our justices of the forest, by common summonses, unless they are in plea, or sureties of one or more, who are attached for the forest.¹¹

CHAPTER 45

We will not make justices, constables, sheriffs, or bailiffs except from those who know the law of the realm, and are willing to keep it.

CHAPTER 46

All barons who have founded abbeys, whence they have charters of the kings of England, or ancient tenure, shall have their custody while vacant, as they ought to have it.

CHAPTER 47

All forests which have been afforested in our time shall be forthwith deforested, and so with the rivers which have been forbidden by us in our time.¹²

CHAPTER 48

All ill customs of forests and warrens, and foresters and warreners, sheriffs and their servants, rivers and their keepers, shall be forthwith inquired into in each county by twelve sworn knights of the same county, who should be chosen by the reputable men of the same county; and, within forty days after the inquest is over, they shall be wholly done away by them, never to be recalled, so we know this first, or our justiciar, if we are not in England.

CHAPTER 49

We will forthwith return all hostages and charters which were delivered to us by the English as security of peace or faithful service.

CHAPTER 50

We will wholly remove from their bailiwicks the relations of Gerard de Athée so that hereafter they shall have no bailiwick in England, Engelard de Cigogné, Andrew, Peter, and Guy de Chanceux, Geoffrey de Martigny and his brothers, Philip Mark and his brothers, and Geoffrey his nephew, and all their following.

CHAPTER 51

And immediately after the restoration of peace, we will remove from the realm all foreign knights, bowmen, officers, and mercenaries who came with horses and arms to the harm of the realm.

CHAPTER 52

If anyone has been disseised or deprived by us without lawful judgment of his peers, from lands, castles, liberties, or his right, we will forthwith restore him; and if a dispute arise about this, judgment shall then be made by twenty-five barons, of whom mention is made below, for the security of peace, and of all those matters of which a man has been disseised or deprived without the lawful judgment of his peers, by King Henry our father, or by King Richard our brother, which lands we have in our hands, or which others have, which we ought to warrant, we will have respite up to the common term of the crusaders, those being excepted of which the plea was raised or inquisition was made by our order, before the taking of our cross, and when we return from our journey, or if we chance to remain from our journey, we will forthwith show full justice thence.

CHAPTER 53

We will have the same respite, and in the same way, about exhibiting justice of deforesting or maintaining the forests, which Henry our father, or Richard our brother afforested, and of the wardship of the lands which are of another's fee, of which thing we have hitherto had the wardship, by reason of the fee, because someone held of us by military service, and of the abbeys which were founded on the fee of another than our own, in which the lord of the fee says he has the right; and when we return, or if we stay from our journey, we will afford full justice to those who complain of these things.

CHAPTER 54

No one shall be seized or imprisoned for the appeal of a woman about the death of any other man but her husband.

¹² In 1217 the first clause was transferred to the Charter of the Forest; the second clause became a separate chapter.

CHAPTER 55

All fines which have been made unjustly and against the law of the land with us, and all amercements made unjustly and against the law of the land, shall be wholly excused, or it shall be done with them by the judgment of twenty-five barons, of whom mention will be made below on the security of the peace, or by the judgment of the greater part of them, along with the aforenamed Stephen, archbishop of Canterbury, if he can be present, and others whom he wills to summon to him, and if he be unable to be present, nevertheless the business shall go on without him, so that if one or more of the aforenamed twenty-five barons arein a like suit, they may be removed as far as this judgment is concerned, and others be appointed, elected, and sworn for this matter only, by the residue of the same twenty-five.

CHAPTER 56

If we have disseised or deprived the Welsh of their lands or liberties or other goods, without lawful judgment of their peers, in England or in Wales, let these things be forthwith restored, and if a dispute arise upon this, let it be thereafter settled in the march by the judgment of their peers; on tenements in England according to the law of England; on tenements in Wales according to the law of Wales; on tenements in the march according to the law of the march. The Welshmen shall do the same to us and ours.¹³

CHAPTER 57

In all these matters in which anyone of the Welsh was disseised or deprived without lawful judgment of his peers, by King Henry our father, or King Richard our brother, which we have in our hands, or which others hold, and which we ought to warrant, we will have respite to the common term of the crusaders, those excepted in which our plea has been raised, or inquisition has been made by our order, before we took the cross; but, when we return, or if by chance we wait from our journey, we will show full justice to them thence, according to the laws of Wales, and the aforesaid parties.

CHAPTER 58

We will restore the son of Llewellyn forthwith, and all the hostages of Wales, and the charters which have been delivered to us for the security of peace.

CHAPTER 59

We will do to Alexander, king of Scots, about his sisters, and restoring his hostages, and his liberties, and his right, according to the form in which we have dealt with our other barons of England, unless they are bound to other matters by the charters which we have of William his father, once king of the Scots, and this shall be by judgment of their peers in our court.

CHAPTER 60

All these aforesaid customs and liberties which we have granted to be held in our realm, as far as belongs to us, towards our own, all in our realm, both clergy and lay, shall observe, as far as belongs to them, towards their own.

¹³ Chapter 56 was retained in the Charter of 1216 but was omitted thereafter.

CHAPTER 61

But since, for the sake of God and for the bettering of our realm, and for better quieting the discord which has arisen between us and our barons, we have ganted all the aforesaid, wishing to enjoy them in pure and firm security forever, we make and grant them the underwritten security: viz. that the barons choose twenty-five barons from the realm, whom they will, who should with all their power keep, hold, and cause to be kept, the peace and liberties which we grant them, and by this our present charter confirm, so that, if we, or our justiciar, or our bailiffs, or any of our servants, do wrong in any case to anyone, or we transgress any of the articles of peace and security, and the offense is shown to four out of the aforenamed twenty-five barons, those four barons shall come to us, or our justiciar, if we are out of the realm, to show the wrong; they shall seek that we cause that wrong to be rectified without delay. And if we do not rectify the wrong, or if we are without the realm, our justiciar does not rectify it within forty days from the time in which it was shown to us or our justiciar, if we are without the realm, the aforesaid four barons shall bring the case before the rest of the twenty-five barons, and those twenty-five barons, with the commonalty of the whole realm, shall distrain and distress us, in every way they can, to wit, by the capture of castles, lands, possessions, and other ways in which they can, till right is done according to their will, saving our person and that of our queen and our children; and, when right is done, they shall obey us as before. And whoever of the land wishes, may swear that he will obey the orders of the aforesaid twenty-five barons, in carrying out all the aforesaid, and that he will distress us as far as he can, with them, and we give publicly and freely license to all to swear who wills, and we will forbid no one to swear. But all those in the land who will not, by themselves and of their own accord, swear to the twenty-five barons about distraining and distressing us with them, we will cause them to swear by our orders, as is aforesaid. And if any one of the twenty-five barons dies, or quits the country, or in any way is hindered from being able to carry out the aforesaid, the remainder of the aforesaid twenty-five barons may choose another into his place, at their discretion, who shall be sworn in like manner with the rest. In all those matters which are committed to the baronsto carry out, if these twenty-five happen to be present and differ on any one point, or others summoned by them will not or cannot be present, that must be had settled and fixed which the majority of those who are present provides or decides, just as if all the twenty-five agreed on it, and the aforesaid twenty-five shall swear that they will faithfully keep all the aforesaid, and cause them to be kept with all their power. And we will ask nothing from anyone, by ourselves or any other, by which any one of these grants and liberties shall be revoked or lessened; and if we do obtain any such thing, it shall be vain and void, and we will never use it by ourselves or by another.

CHAPTER 62

And all ill will, wrath, and rancor, which has arisen between us and our men, clerics and laymen, from the time of the discord, we fully have remitted and condoned to all. Besides, all the offenses done by reason of the same discord, from Easter in the sixteenth year of our reign to the renewal of peace, we wholly remit to all, clerics and laymen, and as far as we are concerned fully have condoned. And, moreover, we have caused letters patent to be made to them, in witness of this, of lord Stephen, archbishop of Canterbury, of lord Henry, archbishop of Dublin, and of the aforesaid bishops, and of Master Pandulf, as the aforenamed security and grants.

¹⁴ Several chapters were added in 1217 that regulated the sheriff's tourn (tour through the hundreds, or subdivisions, of a county to hold court) and view of frankpledge; made it illegal for anyone to give land to a religious house and receive it back to hold as a tenant; established that scutage should be taken as it had been during the reign of King Henry II (1154–1189); and decreed that all adulterine castles (castles built without the king's permission) that had been erected since the beginning of the war between John and the barons should be destroyed. All but the last chapter were retained in 1225.

CHAPTER 63

Wherefore we will and firmly order that the English church should be free, and that the men of our realm should have and hold all the aforenamed liberties, rights, and grants, well and in peace, freely and quietly, fully and completely, for them and their heirs, from us and our heirs, in all things and places, forever, as is aforesaid. It is sworn both by us, and on the part of the barons, that all these aforesaid shall be kept in good faith and without ill meaning. Witnesses, the above-named and many others. Given by our hand, in the meadow which is called Runnymede, between Windsor and Staines, on the fifteenth day of June, in the seventeenth year of our reign.¹⁴

Magna Carta

Excerpt from the Magna Carta

Original Magna Carta published in 1215

Reprinted from Magna Carta: Manuscripts and Myths by Claire Breay
Published in 2002

"No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we [English royalty] proceed with force against him or send others to do so except by the lawful judgment of his equals or by the law of the land." An English document drawn up in 1215, the Magna Carta became known as the first written guarantee of basic civil liberties and was held up as a protection for Englishmen against excessive royal power for centuries. Clauses 39 and 40 of the Magna Carta, quoted above, evolved into the cornerstone of the American criminal justice system—due process of law, meaning legal procedures must be followed fairly, and trial by jury. These basic legal concepts were later incorporated into the U.S. Constitution and Bill of Rights in order to protect and uphold the civil liberties of U.S. citizens.

"For no one will we sell, to no one deny or delay right or justice."

Surprisingly, the original purpose of the Magna Carta was neither grand nor visionary. It was a practical agreement negotiated over many months between the English land barons (wealthy noblemen) and King John (1167–1216), the tyrannical ruler of England from 1199 to 1216. The only intent of the Magna Carta was to resolve the longstanding grievances of the barons against the king, and its clauses were not issued as principles of law. Threatened by the rebellious barons with civil war in spring 1215, King John reluctantly agreed to the demands of the barons that were in the Magna Carta.

Events leading to the Magna Carta

Throughout his reign, and despite employing a powerful army of mercenaries, King John suffered repeated defeat in a series of wars to defend Britain's land in western France. The wars were disastrous; not only was warfare expensive but King John also lost income that had been generated from the French lands for the British crown. King John demanded increasing payments from his barons to pay military costs and make up for lost income.

King John and his subjects lived in a feudal society. In accordance with feudal custom the king granted barons land in return for an oath of loyalty, obedience, and military service. The barons provided knights for the king's military whenever required instead of paying rent to the king. Barons received control over their land but it was still owned by the king. In turn, the barons granted smaller parcels of their land to individuals chosen to serve as knights. This arrangement was known as holding land "in fee" from the king. For their loyalty, the king was obliged to treat his barons and knights with fairness and respect.

In addition to military service, a king was allowed to charge and collect a variety of taxes or fees from barons to support the crown. Customary fees included reliefs, aids, scutage, and county court fines. Reliefs were collected when a baron died and the baron's heir inherited the baron's land and other property. If the heir was underage, the king could take guardianship over the land and all of its profits. The king could sell the guardianship to anyone who could pay the worth of the land. When the heir came of age, he had to pay a relief to get his land back. The king also had the right to sell widows and daughters into marriage for the price of the land. With regard to reliefs, King John dealt unsympathetically and for maximum profit.

For special occasions, the king collected fees called aids from the barons. There were three such occasions: when the king's eldest son was knighted, when his eldest daughter married, and for ransom money should the king be captured and a ransom required. A scutage was a cash payment to the king instead of providing knights for military service. The payments allowed the king to hire men to serve in his army.

By King John's reign, excessively high scutage payments were commonly demanded to fulfill a baron's military obligation. Further, King John appointed all of the judges of England's county courts. The fines imposed on those who ran afoul of the courts were extreme, often taking an individual's property and possessions.

In the 1200s the pope was still the spiritual overseer of the Catholic Church. King John continually struggled over power with Pope Innocent III (1160–1216). He strenuously fought the 1206 election of Stephen Langton (d. 1228) as archbishop of Canterbury, the most powerful church position in England. King John even refused Langton entry into England until 1213. In 1215 Langton became a key negotiator between the king and his barons during negotiations over issues addressed in the Magna Carta.

Around 1210 King John's fee demands had become unreasonable, breaking all rules of customary fairness. He acted impulsively and with no regard to justice. Having had enough of this uncontrolled use of power, in January 1215 the rebellious land barons wrote down their complaints against the king. They demanded a document be drawn up guaranteeing justice in taxation, respect for ancient feudal customs of mutual obligation and fairness, and limits on King John's power.

On June 10 the barons, dressed in full armor, met the king's representatives in Runnymede meadow on the banks of the River Thames to continue negotiations. Faced with losing the barons' loyalty and a probable civil war, King John reluctantly agreed to the demands listed in a document called the "Articles of the Barons." King John placed his seal on the articles on June 15, 1215; the barons renewed their allegiance to the king on June 19.

In the days immediately following June 15, officials at the royal chancery (records office) formally drafted the full text of the points agreed to at Runnymede in the form of a legal letter. The document eventually became known as the Magna Carta (Latin for the "Great Charter"). The royal chancery then distributed copies to county sheriffs and bishops to be read to the people.

The Magna Carta contained sixty-three clauses. The first guaranteed the rights and liberties of the Catholic Church free from royal interference. Nearly two-thirds of the clauses addressed the king's abuses of feudal fees and wrote down what the king could and could not charge according to customs. Other clauses dealt with justice and limited fines the king's judges could charge those taken to court.

Clauses 39 and 40, given no special significance at the time, addressed civil liberties, halted unjust imprisonment, and introduced the idea of trial by "equals," meaning trial by one's peers. Ultimately these two clauses would be key to the Magna Carta's legacy of creating fundamental principles of law. The most radical clause provided for the election of twentyfive barons to a commission to enforce the rules set down in the document. The commission had the power to seize property from the king if he did not follow the charter's rules.

As sealed in 1215 the Magna Carta was simply an agreement between the king and barons to help defuse a political crisis. It was not intended to be the foundation of democratic civil liberties or set legal principles. For the first time in history, however, a king agreed in writing that he was not above the rules of the land and that his authority could be limited by a written document. The deceptive King John had no real intention of abiding by the charter, he only hoped to buy time until he could overpower the barons. That the Magna Carta did become a basis for democracy was due to the way it was handled after the king's death and to the practical use of its clauses, which spoke to the needs of people who desired to live freely.

The following excerpt from the Magna Carta as reprinted in Magna Carta: Manuscripts and Myths provides a sampling of clauses as written in 1215.

Things to remember while reading excerpts from the Magna Carta:

• Clause 1 addressed freedom of the church. Influenced by Archbishop of Canterbury Langton, it promised that the church could elect its officials free of royal interference and sought to halt King John's challenges to the church. This clause was not in the Articles of Barons sealed at Runnymede but apparently was added at the royal chancery.
• Clauses 2, 7, and 12 limited the power of the king in demanding extremely high fees and in controlling the personal lives of his subjects.
• Clause 13 is an example of a clause directed at a special interest group, the citizens of cities, rather than land barons.
• Clause 20 limited court fines.
• Clauses 39 and 40 are considered to be what helped set apart the Magna Carta over time. With these words they introduce the idea of trial by jury and due process.
• Clause 52 provided "redress" or compensation for a wrong.
• Clause 61 provided a way to enforce the Magna Carta.
• Note that anytime "we" is used it refers to the king and the royal officers.

Excerpt from the Magna Carta

1. First that we have granted to God, and by this present charter have confirmed for us our heirs in perpetuity that the English Church shall be free, and shall have its rights undiminished, and its liberties unimpaired . . . .

2. If any earl , baron, or other person that holds lands directly of the Crown, for military service, shall die, and at his death his heir shall be of full age and owe a "relief," the heir shall have his inheritance on payment of the ancient scale of "relief." That is to say, the heir of heirs of an earl shall pay £100 for the entire earl's barony, the heir or heirs of a knight, 100 [shillings], at most for the entire knight's "fee", and any man that owes less shall pay less, in accordance with the ancient usage of "fees." [Clause 2 restated: When a landholder dies, his heir must pay a fee to inherit the property. The customary fee for the heir of an earl was 100 pounds, for a knight 100 shillings or 5 pounds.]

7. At her husband's death, a widow may have her marriage portion and inheritance at once and without trouble. She shall pay nothing for her dower , marriage portion, or any inheritance that she and her husband held jointly on the day of his death. She may remain in her husband's house for forty days after his death, and within this period her dower shall be assigned to her. . . .

12. No "scutage" or "aid" may be levied in our kingdom without its general consent , unless it is for the ransom of our person , to make our eldest son a knight, and (once) to marry our eldest daughter. For these purposes only a reasonable "aid" may be levied. "Aids" from the city of London are to be treated similarly.

13. The city of London shall enjoy all its ancient liberties and free customs, both by land and by water. We also will and grant that all other cities, boroughs, towns, and ports shall enjoy all their liberties and free customs. . . .

20. For [a] trivial offence , a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood.

39. No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.

40. To no one will we sell, to no one deny or delay right or justice. [Individuals shall expect an orderly process in hearing legal matters. The king could not delay or deny justice.]

52. To any man whom we have deprived or dispossessed of lands, castles, liberties, or rights, without the lawful judgement of his equals, we will at once restore these. In cases of dispute the matter shall beresolved by the judgement of the twenty-five barons referred to below in the clause for securing the peace.

61. Since we have granted all these things for God, for the better ordering of our kingdom, and to allay the discord that has arisen between us and our barons, and since we desire that they shall be enjoyed in their entirety , with lasting strength, forever, we give and grant to the barons the following security:

The barons shall elect twenty-five of their number to keep, and cause to be observed with all their might , the peace and liberties granted and confirmed to them by this charter.

If we, our chief, justice, our officials, or any of our servants offend in any respect against any man, or transgress any of the articles of the peace or of this security, and the offence is made known to four of the said twenty-five barons, they shall come to us—or in our absence from the kingdom to the chief justice—to declare it and claim immediate redress . If we, or in our absence abroad the chief justice, make no redress within forty days, reckoning from the day on which the offence was declared to us or to him, the four barons shall refer the matter to the rest of the twenty-five barons, who may distrain upon and assail us in every way possible , with the support of the whole community of the land, by seizing our castles, lands, possessions, or anything else saving only our own person and those of the queen and our children, until they have secured such redress as they have determined upon. . . .

The twenty-five barons shall swear to obey all the above articles faithfully, and shall cause them to be obeyed by others to the best of their power. . . .

63. It is accordingly our wish and command that the English Church shall be free, and that men in our kingdom shall have and keep all these liberties, rights, and concessions, well and peaceably in their fullness and entirety for them and their heirs. . . .

Both we and the barons have sworn that all this shall be observed in good faith and without deceit . . . .

Given by our and in the meadow that is called Runnymede, between Windsor and Staines, on the fifteenth day of June in the seventeenth year of our reign [June 15, 1215].

What happened next . . .

Although King John had promised to abide by the clauses of the Magna Carta forever, on August 24, 1215, he had the pope issue a document declaring it null and void. That document reached England in late September. Technically, the Magna Carta was valid for only ten weeks. Disputes and confrontations continued between King John and the barons until the king's death from a sudden attack of dysentery (an infection of the lower intestines) in October 1216.

When King John died, his son and heir Henry III (1207–1272) was only nine-years-old. The earl of Pembroke, William Marshal, was appointed to govern until Henry III came of age to assume the throne. Marshal, to restore peace, revised and reissued the Magna Carta on November 12, 1216 and again on November 6, 1917. In 1225 King Henry III further revised and reissued the charter under his own "Great Seal." This version of the Magna Carta maintained the core of the clauses agreed to at Runnymede and, in 1297, it was written onto the first statute (law) roll and officially became part of English law. The Magna Carta was read twice yearly in both county courts and cathedrals as the affairs of government and church were interwoven together. Anyone who broke the laws of the Magna Carta could be excommunicated (forced to leave the church). In the mid-fourteenth century the portion of Clause 39 that read "by the lawful judgement of his equals" evolved into trial by "peers," or trial by jury.

A strong test of the Magna Carta occurred in the 1600s when King James I, who ruled from 1603 to 1625, and Charles I, who ruled from 1625 to 1649, both of the House of Stuart, tried to rule with absolute power. They believed God gave them the right to rule rather than any earthly document. Parliament, a government body made up at the time of various English noblemen, continued to uphold the ideas of the Magna Carta and it came to be seen as a check or safeguard on royal power.

Sir Edward Coke (1552–1634), chief justice under King James I, became a leader in Parliament in opposition to King Charles I and wrote extensively on civil liberties. Key guarantees defended by Parliament were trial by jury and the assurance that individuals would not be unfairly imprisoned or their possessions seized. The most important aspect of the Magna Carta's creation was its impact on the New World. Brought by English settlers in the 1600s to the future United States of America, the Magna Carta planted the seeds for our future justice system.

The Magna Carta impacted the New World from the start; early colonists, echoing Sir Coke's teachings in the first half of the seventeenth century, presumed they had the same rights and liberties of those in England. Leaders of colonies, such as William Penn (1644–1718) who founded Pennsylvania in 1681, developed legal codes that included liberties directly based on guarantees in the Magna Carta.

In the eighteenth century future U.S. presidents John Adams (1735–1826; served 1797–1801) and Thomas Jefferson (1743–1826; served 1801–08) studied Coke's writings on civil liberties and the Magna Carta. Just before armed conflict broke out between the American colonies and England in 1775, the colony of Massachusetts adopted a seal depicting a soldier holding a sword in one hand and the Magna Carta in the other.

The Declaration of Independence, written in 1776, listed the American colonists' grievances against the British royalty just as the Magna Carta in 1215 addressed grievances of the English land barons against King John. The preamble of the U.S. Constitution makes it clear that government's power comes from the people.

In more modern times, Eleanor Roosevelt (1884–1962), American humanitarian and wife of President Franklin D. Roosevelt (1882–1945; served 1933–45) used wording similar to that in the Magna Carta when she authored the 1948 Universal Declaration of Human Rights for the United Nations. At the beginning of the twenty-first century, echoes of Clauses 39 and 40 were still heard in U.S. court proceedings.

Did you know . . .

• When written, the Magna Carta's clauses applied only to those persons at the highest levels of feudal society. It was meant to protect the rights and property of England's most powerful families. It did not apply to the common folk or peasants who made up the majority of England's population. Only after many centuries was it applied to all.
• The Magna Carta was not actually called the Magna Carta until after the November 6, 1217, revision. At that time clauses of the charter relating to the royal forest were put into a shorter document known as the Charter of Forest. The remaining clauses became known as the Magna Carta.
• At the beginning of the twenty-first century, four copies of the Magna Carta originally produced by the royal chancery in June 1215 still survived. Two were held by the British Library in London, one was archived at Lincoln Cathedral in Lincoln, and one was at Salisbury Cathedral in Salisbury. All were written using a quill (feather) pen and parchment (treated sheepskin).
• Only four clauses remained part of the English legal system at the start of the twenty-first century: Clauses 1, 13, 39, and 40.
• At the beginning of the twenty-first century, a 1297 version of the Magna Carta was displayed in the National Archives Rotunda in Washington, DC. The U.S. Declaration of Independence and Bill of Rights were also displayed.
• In 1957 the American Bar Association erected a monument at Runnymede in recognition of the Magna Carta's influence on American law.

Consider the following . . .

• Look up Amendments 5 and 6 in a copy of the Bill of Rights. Compare the amendments with Clauses 39 and 40 of the Magna Carta. What wording supports the idea that the amendments were patterned after Clauses 39 and 40?
• Why do you suppose clauses 39 and 40 were hidden deep in the Magna Carta? Remember that there was no such thing as a jury trial in 1215. What form might a "lawful judgement" of one's "equals" have looked like in the thirteenth century?
• Cite examples of countries in today's world where single leaders are or recently have been above the law. Choose one country and research what civil liberties do or do not exist for its citizens.

In perpetuity: Forever.

Its rights undiminished, and its liberties unimpaired: The right to operate in England without royal interference.

Earl: British nobleman higher in status than a baron.

Dower: Deceased husband's property or money due to her rightly as his widow.

General consent: Agreement by the barons.

Our person: The king.

Trivial offence: Misdemeanor, or minor infraction.

Standing: Social standing, as in earl, baron, etc.

Allay: Halt.

Enjoyed in their entirety: Enforced.

Observed with all their might: Enforced with all of their power.

Transgress: Violate.

Redress: Compensation for the wrong.

Reckoning: Beginning.

Distrain upon and assail us in every way possible: Right the wrong.

Deceit: Trickery.

For More Information

Books

Breay, Claire. Magna Carta: Manuscripts and Myths. London: The British Library, 2002.

Holt, James C., ed. Magna Carta and the Idea of Liberty. Malabar, FL: R. E. Krieger, 1982.

Pallister, Anne. Magna Carta: The Heritage of Liberty. Oxford: Clarendon Press, 1971.

Web Sites

The British Library.http://www.bl.uk/collections/treasures/magna.html (accessed on August 24, 2004).

"Featured Documents." National Archives and Records Administration.http://www.archives.gov/exhibit_hall/featured_documents/magna_carta/legacy.html (accessed on August 24, 2004).

MAGNA CHARTA

On June 15, 1215, King John (1199–1216) was surrounded on the battlefield at Runnymede by a cordon of England's most powerful barons, who demanded royal recognition for certain liberties and legal procedures they enumerated in a written document known today as the Magna Charta. Contained in the Magna Charta's 63 chapters are the seeds of trial by jury, due process, habeas corpus, and equality under the law. The Magna Charta was reissued three times during the reign of Henry III (1216–72) with some minor alteration, and confirmed by the Crown more than 30 times thereafter.

Sometimes called the Great Charter, the Magna Charta is widely considered to be the foundation of the English and U.S. constitutional systems, representing the first time the often tyrannical power of the monarchy was restrained by law and popular resistance. The Magna Charta was cited by sir edward coke, esteemed English jurist and member of the House of Commons, in opposition to the monarchy's assertion of absolute power in the seventeenth century. During the American Revolution, colonists relied on the Magna Charta when they convened the First continental congress to restore the rights lost under the coercive legislation of Parliament.

Almost from its inception, the Great Charter has been imbued with two separate meanings, one literal and the other symbolic. The literal meaning is reflected by the original understanding of the Magna Charta in the thirteenth century; the symbolic meaning was developed by subsequent generations, which interpreted its provisions in light of a changing political landscape. The literal meaning was associated with the concrete rights enforced by the barons against the monarchy; the symbolic meaning became associated with the rule of law, an impartial system of justice, and government by the consent of the people and their representatives. To understand the symbolic importance attached to the Magna Charta, one must view the literal meaning in its original context.

The Magna Charta is the product of three competing legal jurisdictions: royal, ecclesiastical, and baronial. The royal system of justice maintained jurisdiction over all matters that

affected the monarch's peace, directly or indirectly. Royal courts heard disputes at a central location in Westminster, and royal itinerant judges traveled locally to dispense the monarch's justice to communities across England.

The Catholic church, with the pope presiding as the spiritual head in Rome, ran the ecclesiastical courts. These courts maintained jurisdiction over the discipline of the church's clergy, religious offenses such as heresy, and most moral, marital, and testamentary matters

Baronial courts were governed by barons, powerful men who were given titles of dignity by the Crown and who held large parcels of land, known as manors, from the monarch. Each baron, as lord of his manor, was invested with the authority to hear disputes involving his tenants, men and women who agreed to work the land in exchange for shelter and security.

John alienated both the ecclesiastical and baronial jurisdictions during his reign as king, converting them into adversaries. The first ten years of John's reign were consumed by controversy with the church. John considered the pope to be subordinate to the Crown and treated the archbishop as a mere civil servant. The church, on the other hand, considered itself to be a separate and independent sovereign that had shared power with the Crown since the time of Henry I (1100–1135). Henry I and the church had agreed that the nomination of bishops in England would tacitly remain with the king. But the pope retained power to confirm bishops by conferring upon them the honorary symbols of their title, the spiritual staff and ring.

The agreement between Henry I and the church provided no resolution for the controversy between King John and Pope Innocent III at the outset of the thirteenth century. The controversy began when Innocent III rejected John's candidate for archbishop of Canterbury and substituted his own choice, Stephen Langton, a man of superior "moral and intellectual greatness" (Trevelyan 1982, 146). John responded by confiscating the church's property in England. The papacy, whose power had grown as a result of its compromise with Henry I, subsequently undertook a series of steps to damage the Crown's prestige and credibility.

The pope excommunicated King John, suspended religious sacraments in England, and declared the English empire a forfeit from God. Facing growing pressure from the church and increasing unpopularity among Catholics within his own country, John surrendered England to the papacy, receiving it back as a fief, which meant the Crown was now subordinate to Rome and was required to pay homage to the pope. These royal concessions satisfied the pope and made him a cautious ally of the Crown. Archbishop Langton was determined to achieve similar concessions for the barons.

The grievances voiced by the barons were quite different from those voiced by the church. The barons' dissatisfaction stemmed from the manner in which the royal system of justice had been abused by King John. Prior to the reign of henry ii (1154–89), english law had comprised a loose collection of customs and traditions followed by a variety of ethnic groups scattered across the realm. Henry II created a centralized system of justice that emanated from London, which the monarch's officials administered in a uniform manner to all English people in common. Although this "common law" established a body of rights and procedures by which all litigants appearing before the ruler's courts would theoretically be treated the same, it also vested an enormous amount of power in the Crown. The tension separating arbitrary royal power from the principle of equality under the law erupted during the struggle between King John and his baronial magnates.

King John regularly sold legal rights and privileges to the highest bidder, rewarded favorites, punished enemies, and otherwise administered justice in an erratic and unfair fashion. For a dispute to be heard by the royal courts, parties were required to pay the monarch fees, which varied from case to case depending on the circumstances. If the Crown was in need of emergency revenue—and it seemingly always was during the reign of King John—these litigation fees were increased commensurate with the urgency of a particular financial crisis. Litigants in good graces with the monarch typically paid lower court fees than litigants in disfavor. A defendant who requested the postponement or suspension of a legal matter was required to pay a greater fee than the plaintiff was charged.

Such litigation fees, which were paid in all legal matters—civil, criminal, matrimonial, and probate—simply enabled parties to assert their claims and defenses before the royal court. They did not guarantee a particular outcome, although the amount paid may have influenced the outcome, and they bore no relationship to the penalty or fine imposed on the losing party. Consequently, defendants who paid an exorbitant fee just to present an unsuccessful defense often faced fines of an equally outrageous amount. Defendants who suffered incarceration for a wrongdoing were usually forced to purchase their freedom from the monarch.

The manner in which the ruler enforced and collected royal debts was no less capricious. Litigants who could not afford to pay the legal fees set by the Crown frequently borrowed money from the ruler in order to pursue a particular right or remedy. The terms of such loan agreements were typically draconian. As collateral for these loans, John required the debtors to pledge their estates, personal property, and sometimes family members. In one case, a debtor was forced to pledge his castle and four sons as collateral. On other occasions, friends and family members of the debtor were held hostage by the king until the loan was repaid in full.

In some instances, the king simply forgave a loan because the debtor was a personal friend, had promised political favors, or had provided an invaluable service. In most instances, the invaluable service was military duty. During the thirteenth century, each baron was required to serve as a soldier in the monarch's army, and provide the Crown with a certain number of knights for military service. A fine could be paid in lieu of the baron's military service, and a tax, known as scutage, was then paid in lieu of the knights' service. When King John launched a military campaign, he dramatically increased the fines and taxes for nonservice, and used these monies to pay mercenaries to fight his battles.

Although King John dreamed of building an English empire through military conquest on the European continent, he was an utter failure on the battlefield. With each military loss, the miscellaneous economic demands made by the Crown seemed less justified and more absurd. It is not surprising, then, that the barons renounced loyalty to the king, plotted his assassination, and ultimately compelled his capitulation to the Magna Charta.

The grievances King John promised to redress in the Magna Charta represent both the substance of the Great Charter's original meaning and its later symbolic import. The document's immediate purpose was to appease the baronial leadership. In this vein, it provided that justice would not be sold, denied, or delayed (ch. 40), and ensured that certain rights and procedures would be "granted freely" without risk of "life or limb" (ch. 36). It guaranteed the safe return of hostages, lands, castles, and family members that had been held as security by the Crown for military service and loan agreements. The Magna Charta mandated the investigation and abolition of any "ill customs" established by King John (ch. 48), and required that no "justices, constables, sheriffs, or bailiffs" be appointed unless they "know the law of the land, and are willing to keep it" (ch. 45).

The phrase "law of the land" is interspersed throughout the Magna Charta, and is emblematic of other abstract legal concepts contained in the Great Charter that outlasted the exigencies of 1215. Nowhere in the Great Charter is "law of the land" defined, but a number of sections offer an early glimpse of certain constitutional liberties in embryonic form.

For example, the American colonies equated "law of the land" with "due process of law," a legal principle that has been the cornerstone of procedural fairness in U.S. civil and criminal trials since the late 1700s. The due process clause of the Fifth and Fourteenth Amendments has been relied on by the U.S. Supreme Court as a source for substantive rights as well, including the right to privacy.

Chapter 39 of the Magna Charta linked the law-of-the-land principle with another important protection. It provided, "No free man shall be seized, or imprisoned, or disseised, or outlawed, or exiled or injured in any way, nor will we enter on him or send against him except by the lawful judgment of his peers, or by the law of the land." In 1215, a person obtained "lawful judgment of his peers" through a communal inquest in which 12 knights or landowners familiar with the subject matter of the dispute took an oath, and swore to testify truthfully based on their own knowledge or on knowledge gained from an eyewitness or other credible source.

This primitive form of fact-finding replaced even cruder methods—such as trial by battle, where the disputants fought savagely until one party begged for mercy or died, and the victorious party was presumed to have God and Right on his side. The process of one's peers in the community rendering judgment also presaged the modern trial by jury recognized by the seventh amendment to the U.S. Constitution, which similarly entitles a defendant to be tried by a body of jurors that is a "truly representative" cross section of the community (Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680 [1942]).

The U.S. Supreme Court has also traced the origins of modern habeas corpus law to chapter 39 of the Magna Charta (Murray v. Carrier, 477 U.S. 478, 106 S. Ct. 2639, 91 L. Ed. 2d 397 [1986]). Habeas corpus is a procedure that authorizes a court to determine the legality under which a person is jailed, imprisoned, or otherwise detained by the government. If the court finds that the person was deprived of liberty through "due process of law," continued detention is permissible until trial, where guilt and innocence are placed in issue. Similarly, the Magna Charta validated the continued imprisonment of persons who had been originally incarcerated by the "law of the land."

In Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991), the Supreme Court also pointed to the Magna Charta as an early source of its eighth amendment proportionality analysis. Chapter 20 of the Great Charter prohibited the monarch from imposing a fine "unless according to the measure of the offense." It further provided that "for a great offense [a free man] shall be [punished] according to the greatness of the offense." Under the Eighth Amendment to the Constitution, the Supreme Court has echoed this principle by prohibiting state and federal governments from imposing fines and other forms of punishment that are disproportionate to the seriousness of the offense for which the defendant was convicted.

The contemporary significance of the Magna Charta is not confined to the areas of civil and criminal procedure. The Great Charter prohibited the government from assessing any military tax such as scutage "except by the common counsel of [the] realm" (ch. 12). The common counsel comprised persons from various classes of English society, including bishops, abbots, earls, and barons. The common counsel was a forerunner to Parliament and Congress as a representative body limiting the power of the government to pass legislation, particularly tax legislation, without popular consent.

The common counsel also proclaimed what would become a battle cry of the American colonists: No Taxation without Representation. Indeed, some colonists decried the stamp act, a statute passed by Parliament that taxed everything from newspapers to playing cards, as an illegal attempt to raise revenue in violation of the Magna Charta. Other colonists cited "the assembly of barons at Runnymede, when Magna Carta was signed" as precedent for the Continental Congress (Bailyn 1992, 173 n. 13).

The achievement of the Magna Charta, then, is found not only in the original meaning understood by Englanders of the thirteenth century, but also in the subsequent application of the document's principles. The Magna Charta began as a peace treaty between the baronial class and the king, but later symbolized a written contract between the governed and the government, a contract that included the right of rebellion when the government grew despotic or ruled without popular consent.

The Magna Charta also came to represent the notion of government bound by the law, sometimes referred to as the rule of law. The distinction between government according to law and government according to the will of the sovereign has been drawn by legal and political philosophers for thousands of years. This distinction was also made during the reign of King John. For example, Peter Fitz Herbert, an important landowner, complained that his father had been "disseised" of land "by the will of the king" despite evidence that the land belonged to his family as a matter of "right."

In another case, jurors returned a verdict against the Crown because the king had acted "by his will and without judgment" (Holt 1965, 91). For subsequent generations, in both England and the United States, the Magna Charta signified the contrast between tyrannical government unfettered by anything but the personal whims of its political leadership, and representative government limited by the letter and spirit of the law. The Magna Charta implied that no government official, not even an autocratic monarch asserting absolute power, is above the law.

Finally, the Magna Charta has come to symbolize equality under the law. Although the baronial leadership of 1215 represented a privileged class of male landowners, many provisions of the Magna Charta safeguarded the interests of women as well. For example, the Magna Charta granted women the right to refuse marriage and the option to remarry. It also protected a widow's dower interest in one-third of her husband's property.

Some provisions of the Magna Charta applied more broadly to all "free" individuals (ch. 39), whereas other provisions seemingly applied to every person in the realm, free or not. Chapter 16, for example, stated that "no one" shall be compelled to perform service for a knight's fee, and chapter 42 guaranteed a safe return to "anyone" who left the realm.

The most telling provision in this regard was chapter 40, which provided that "justice" will be sold to "no one." This provision embodies more than the idea that justice is cheapened when bought and sold. It also underscores the principle that all persons, rich and poor, must be treated the same under the law. An extension of this principle was captured by the equal protection clause of the fourteenth amendment to the U.S. Constitution, which, as interpreted by the Supreme Court, invalidates laws that discriminate on the basis of, among other things, race, gender, national origin, and illegitimacy.

further readings

Bailyn, Bernard. 1992. The Ideological Origins of the American Revolution. Enl. ed. Cambridge: Harvard Univ. Press.

Caher, John. 2002. "Rosenblatt Reflects on Impact of Magna Carta." New York Law Journal 228 (July 11): 1.

Holt, J.C. 1965. Reprint 1992. Magna Carta. Cambridge: University of Cambridge.

Irvine, Alexander Andrew Mackay. 2003. "The Spirit of Magna Carta Continues to Resonate in Modern Law." Law Quarterly Review 119 (April): 227–45.

McKechnie, William Sharp. 2000. Magna Carta: A Commentary on the Great Charter of King John: With an Historical Introduction. Union, N.J.: Lawbook Exchange.

Plucknett, Theodore. 1956. A Concise History of the Common Law. Boston: Little, Brown.

Siegan, Bernard H. 2001. Property Rights: From Magna Carta to the Fourteenth Amendment. New Brunswick, N.J.: Social Philosophy and Policy Foundation.

Trevelyan, G.M. 1982. A Shortened History of England. Middlesex, England: Penguin.

Wells, J.C. 2002. Magna Charta, or, The Rise and Progress of Constitutional Civil Liberty in England and America: Embracing the Period from the Norman Conquest to the Centennial Year of American Independence. Buffalo, N.Y.: W.S. Hein.

Wormald, Patrick. 1999. The Making of English Law. Malden, Mass.: Blackwell.

cross-references

Common Law; English Law; Feudalism; Magna Charta (Appendix, Primary Document).

Magna Carta

BIBLIOGRAPHY

Emerging as a thirteenth-century agreement between crown and aristocracy, the language of Magna Carta (literally, “great charter”) proved pregnant with meaning for later generations. The charter came to be seen as representing wider legal and political principles, especially those of lawful and limited government.

The charter was drafted against a backdrop of complex political and military disputes. At the center of each was King John (c. 1167–1216), the Plantagenet ruler of England, Wales, Ireland, and much of northern France. A descendant of the Normans who had conquered England a century earlier, John would become the first to reside permanently in England. He was crowned king in 1199 and immediately faced competing claims on his French territories, not least those of King Philip II (1165–1223) of France. In a series of wars with Philip and his allies, John lost much of his continental holdings by 1204. The following years saw him invade successively—and more successfully—Scotland, Ireland, and Wales. To exacerbate these military demands, John fell foul of Pope Innocent II (d. 1143). In 1207 the king contested the pope’s nominee for archbishop of Canterbury, Stephen Langton (c. 1150–1228). As a result, the pope placed England under an interdict on religious worship, excommunicated the king, and sided with Philip.

In attempting to pay for his military activities, John imposed increasing financial demands on the Anglo-Norman aristocracy. Combined with complaints about royal interference with the administration of justice, the result was rebellion against the king. In 1212 John acquiesced to the pope, agreeing to surrender his kingdoms to the papacy as feudal overlord and repurchasing them from him. An invasion of England was narrowly avoided the following year when the French fleet was destroyed. John then invaded France in 1214 in the hope of reclaiming his territories there. He suffered a major defeat at Bouvines, resulting in the loss of most of his remaining continental possessions.

John soon faced additional problems within England. Encouraged by Archbishop Langton, the Anglo-Norman barons there remonstrated against the king’s financial demands and judicial interference. In May 1215 they took London by military force. A truce was sought and representatives met at Runnymede, a meadow west of London on the river Thames, in June 1215. After much discussion, they agreed to a document of compromises called the Articles of the Barons. This was superseded by the charter subsequently known as Magna Carta. Formally, Magna Carta was a royal letter written in Latin dealing with a wide variety of issues: the freedom of the church, feudal customs, taxation, trade, and the law. This was not the first attempt to limit political power by a written charter. In England, for example, the Charter of Liberties issued by Henry I (c. 1068–1135) predated Magna Carta by over a century. Magna Carta was also similar to contemporaneous continental charters and legislation. Many of its rules came from a common pool of European political and legal thought, not least the canon law of the church. In the short term, the most potentially radical element of Magna Carta was probably the provision for a commission of barons to ensure royal compliance. But this came to nothing. Contrary to subsequent interpretation, it had little to do with the lesser landholders or the vast peasantry of England.

John renounced Magna Carta almost immediately. The pope, too, issued a papal bull against the agreement because it had been imposed by force. Civil war returned. Numerous barons now aligned themselves with Louis (1187–1226), Philip’s son and later Louis VIII of France, who invaded England in May 1216 with a significant army. Louis subsequently occupied London, where he was received enthusiastically by the barons and was proclaimed king of England. John made some military gains, but died of dysentery in October 1216. With his death, the barons’ complaints were less pressing. John’s nine-year-old son, Henry III (1207–1272), was seen as more politically malleable and was crowned English king. His regent, William Marshall (c. 1146–1219), one of the signatories of Magna Carta, revised and reissued the document in November 1216. Marshall was also able to convince most of the rebellious barons to renew their loyalty to the crown, ending the war. In 1217 a treaty was signed, and Louis left England. Another revision of Magna Carta that year separated the document into two sections: a brief Charter of the Forest concerning the royal forests, and the remaining text, the larger Magna Carta. Henry III reissued a still shorter version of Magna Carta in 1225. This version was confirmed by Edward I (1239–1307) in 1297.

The vague wording of Magna Carta, combined with changing social structures, meant that its text was continually reinterpreted. This is already evident in the fourteenth century. In general, the charter was largely ignored for centuries. By the seventeenth century, however, it took on greater significance in conflicts between king and Parliament. Lord Chief Justice Edward Coke (1552–1634) was especially important in popularizing the belief in Magna Carta’s wider constitutional principles. With parliamentary ascendancy in the late seventeenth century, it continued to play an important role in debates both in and out of Parliament. In the eighteenth century, Magna Carta served as a touchstone for American independence and constitutional government. In England, the nineteenth century brought a more balanced assessment of its historical meaning and the removal of most of its antiquated provisions from English law.

The document retains a deeply symbolic importance throughout the English-speaking world. The American Bar Association erected a monument at Runnymede in 1957. In May 2003 the Australian Parliament opened Magna Carta Place in Canberra. In the early twenty-first century, four copies of the original charter remain: two in the British Library and one each in the cathedral archives at Lincoln and Salisbury.

SEE ALSO Democracy; Feudalism; Monarchy; Monarchy, Constitutional; Sovereignty

BIBLIOGRAPHY

Breay, Claire. 2002. Magna Carta: Manuscripts and Myths. London: British Library.

Hindley, Geoffrey. 1990. The Book of Magna Carta. London: Bury St. Edwards.

Holt, J. C. 1985. Magna Carta and Medieval Government. London: Hambleton.

Holt, J. C. 1992. Magna Carta. 2nd ed. Cambridge, U.K.: Cambridge University Press.

Seán Patrick Donlan

Magna Carta

There are few documents in Anglo-American constitutional history more sanctified than the Magna Carta. On its face, the document is a medieval charter commonly used to convey land, authorized in 1215 by King John of England (1167–1216) under threat of civil war from his barons. Since that date, significant constitutional principles have been attributed to the Magna Carta, even though it was a document drawn up in the midst of a violent political crisis by selfish men gifted neither with prescience nor political genius. Yet for many centuries historians and politicians have celebrated the date of its creation, and the venerable American Bar Association has erected a monument in England in its honor. Understanding the document's true importance depends on appreciating its historical context and limitations.

The nobles and others who met with King John and secured his agreement to sign the Magna Carta on June 15, 1215, were desperate men frustrated by repeated royal abuses and failures. Indeed, by that year King John had outraged virtually all of his most literate and important subjects, including the clergy, nobility, and merchants. He had insulted Rome by confiscating church lands, insisting that clerics accused of crimes be tried in royal courts, and resisting the selection of a new Archbishop of Canterbury in 1204. Successive popes responded to these actions by placing an interdict on England that denied the populace any sacraments except baptism and last rites. The interdict remained in effect for seven years, finally reaching a crisis point when John himself was excommunicated from 1209 until 1213. Never before had any English king allowed relations with Rome to degenerate into such a lengthy impasse.

John's barons were angry because he had abused traditional feudal contracts in numerous ways. Too frequently, he had charged them fees known as feudal aids and reliefs, which had previously been limited to occasional moderate assessments. To make matters worse, the military campaigns by which John justified these exorbitant charges were uniformly unsuccessful, including the loss of Normandy, which had been held by English kings since the conquest of 1066. He tried and failed repeatedly to reclaim it, and ultimately his rival, King Phillip of France, forced John's barons, who for generations had held land in both England and Normandy, to choose between loyalty to one country or to the other, causing them to lose land and wealth. Furthermore, John had continued the policy of his grandfather, Henry II (1133–1189), requiring that most civil disputes be tried in royal courts superseding baronial courts.

Merchants were upset that the king's poor diplomacy and unsuccessful wars had not only cost them tax revenue, but also had inhibited their business dealings abroad. They were further offended at his constant interference in the self-governance of London and other cities. John's inept administration, his perceived tyrannies, and his excessive taxation burdened many and resulted in such a loss of prestige that the powerful and wealthy joined forces against him. Their alliance was fragile and might not have endured lengthy royal resistance to their terms, but John signed the document they proposed. Although he immediately repudiated it, his signature did save the nation from internecine war. He died soon thereafter on October 19, 1216. At his infant son's succession, his regents felt it prudent to reissue the Magna Carta. Over the following century its main principles were absorbed into statutory laws.

The document that emerged from these dissident groups reflected each of their complaints and, most remarkably, forced the king to acknowledge error. The original text was written in Latin as a solid block of run-on clauses that were not divided into convenient chapters or subjects. Contemporaries named it "magna" not because of its significance, but because of its great length. Later versions divided the text into sixty-three randomly ordered headings falling into four major categories. The first assured the liberties of the English Church, the second stipulated that land tenures were secure, the third modified the administration of royal justice, and the fourth contained a variety of provisions for merchants, townspeople, and others.

John promised the church that he would not interfere with its elected officials, their duties, and their lands. He acknowledged to his barons that he had violated the restraints of the feudal contract by which they held their land, and he swore that he would respect the reciprocal nature of the feudal relationship by convening them to consider extraordinary revenues. John agreed to locate his major civil court in a single place rather than require it to follow him. He also promised to make proceedings of the king's court, known as assizes, available by a regular circuit of justices. Curiously, at the very moment when the barons might have destroyed royal justice and asserted their hegemony, they maintained its viability. The barons also wrung from John's reluctant hand an agreement whereby they might not be legally prosecuted without the common consent of their "peers," a phrase subsequently interpreted by many as the root of the jury system and parliamentary government. Finally, the king promised to respect the rights and privileges of urban charters and royal forests.

The Magna Carta might have declined into obscurity had it not been for the violent constitutional conflicts that erupted in the seventeenth century. Beneath the surface of its sixty-three provisions is an implied bond between lord and vassal that some later observers argued created a new relationship between the king and society. In 1628 Sir Edward Coke (1552–1634), Chief Justice of the Common Pleas, maintained that the Magna Carta had established restraints on royal power, and Anglo-American polemicists asserted that it had introduced cherished individual freedoms such as trial by jury, the assurance of swift adjudication according to recognized law, and "no taxation without representation." Furthermore, some have credited the Magna Carta with planting the seeds of constitutional government replete with representative institutions that protect individuals and private property against arbitrary rule. Other scholars, however, acknowledge that the Magna Carta represented a dynamic seed from which much has grown, but make more circumspect claims regarding its influence. What is indisputable is that a medieval document established royal error, promised redress under the law, and did so in writing. Without question, this document created a dramatic political symbol for the future.

See also: Juries.

bibliography

Holt, James Clarke. Magna Carta. Cambridge, UK: Cambridge University Press, 1965.

Jones, J. A. P. King John and Magna Carta. London: Longman, 1971.

Malden, Henry Elliot. Magna Carta Commemorative Essays. London: Royal Historical Society, 1917.

Thompson, Faith. The First Century of Magna Carta: Why It Persisted as a Document. Minneapolis: University of Minnesota, 1925.

Thompson, Faith. Magna Carta: Its Role in the Making of the English Constitution. Minneapolis: University of Minnesota, 1948.

Kathryne McDorman