Magna Carta

In law school you heard and read about the Magna Carta. You remember that it was a Good Thing, was vital to Freedom, Democracy, Apple Pie, etc. But anything more than that is probably a blur even when you’re sober, especially since its unlikely that you were ever taught it in the first place. That has for centuries been the status of Magna Carta: really famous and really important for reasons few people really understand. The understanding is not very hard, though, and tells us interesting things about the difference between Law and History.

The year was 1215. The major barons of the realm were in revolt. After several months of negotiation, they and King John reached the peace treaty we now call Magna Carta. It contained a lot of boring details about landholding, estates, and such but also contained broad statements of principle such as the following, which your law professors explained led both to the jury system and to due process of law:

Nullus liber homo capiatur, vel imprisonetur, aut disseisiatur, aut utlagetur, aut exuletur, aut aliquo
modo destruatur, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium
suorum vel per legem terre.

No free man shall be taken or imprisoned or disseised or outlawed or exiled or in any way
ruined, nor will we go or send against him, except by the lawful judgment of his peers or by the
law of the land.

(This is cap. 29 of the document known as Cii, one of the four surviving copies of Magna Carta, the one on display at the British Museum in London. The paragraph, known as “nullus liber homo,” is sometimes quoted in the slightly different version used when Magna Carta was reissued in 1225)

At this point History must point out a few inconvenient facts. The peace lasted only few months; civil war lasted two more years, until John had the good sense to die suddenly and everybody agreed that they would rather let his son be king than to fight any longer. “Judgment of his peers” had nothing to do with juries; trial by jury did not become the norm until after 1215 (to remember why, re-read the careful notes you took when you read my piece about juries). And “the law of the land” essentially meant the opposite of “due process of law.”

And yet it is true that cap. 29 was one of the things that the founders of this country would have had in mind when the wrote such things as the Declaration of Independence and the Constitution, and when they talked about due process and the right to a jury of one’s peers. So why did a failed peace treaty that didn’t do any of the things we think it did become so important?

First, because it became a symbol of good government. Kings “reissued” it and agreed to abide by it. (“Reissue” means that they promulgated new versions that left out the parts they most disliked.) In the late thirteenth century, Magna Carta was incorporated into the statutes, and stayed there until the Law Reform Act of 1863.

Second, because its broad statements of principle came to be seen as the important parts, as the provisions dealing with details of landholding and estates – which were the important parts to the people who wrote it – were either accepted or superseded.

Cap. 29 was not originally a bulwark of tyranny against the king. John, not the barons, insisted on including it; it served to confirm his power. In the middle of the fourteenth century, though, Parliament passed some statutes that attempted to clarify what “law of the land” meant. Those statutes introduced the phrase “due process of law.”

But the real emphasis on Magna Carta came four hundred years later. The seventeenth century was the time of another revolt, when Cromwell and the Roundheads deposed and beheaded King Charles I. Polemicists used Magna Carta to criticize what Charles did and to justify what the rebels did. Their interpretations of it were, as opponents at the time pointed out, largely anachronistic: they interpreted Magna Carta according to the laws and customs of the seventeenth century, not the thirteenth. But their view prevailed and, even after kings returned to power, Magna Carta was seen as the preeminent symbol and tool of resistance to tyranny.

This was still true a century later, when the founders of this country were educated. Magna Carta was for them an inspiration for resistance to the king, an example of a written charter restraining the power of government, and a source of principles and ideas necessary for ordered liberty. They knew about due process of law and a jury of your peers and “knew” that Magna Carta had established them. That the one had nothing to do with the other is merely History. What they thought they knew made it Law.

The document’s historical reality has never been important. Magna Carta was the original “evolving” constitution; it has meant different things at different times and its perceived importance grew with historical distance. It is legitimately seen as the ancestor both of our Constitution and of many of the ideas in it. That is why, a century after Magna Carta was removed from the English statute books, the Magna Carta Memorial in England was erected and financed by the American Bar Association.