Oregon State Bar Bulletin — JUNE 2015







June 15, 2015 marks the 800th anniversary of the sealing of Magna Carta. Since then, all but a few paragraphs have been repealed. Nevertheless, the ancient document is widely regarded as one of the most significant written instruments in Anglo-American legal history. As Winston Churchill proclaimed in his famous “Iron Curtain” speech, Magna Carta expresses “the great principles of freedom and the rights of man which are the joint inheritance of the English-speaking world.”1

Magna Carta could easily have become an obscure footnote to the history of medieval England. The bulk of its text is devoted to such thrilling stuff as the proper venue for “recognizances of novel disseisin, mort’dancestor, and darrien presentment” and the abolishment of “evil customs concerning forests.” In fact, Magna Carta was a failure in its own time. It was wholly annulled within a few short months after King John placed his seal on it.

The “Great Charter,” however, became more than a relic of a distant past. Its list of promises extracted from a despotic king by a group of “rude, mostly unlettered, and generally selfish barons”2 became an enduring symbol of the rule of law and restraint on arbitrary exercise of governmental power.

King John’s Troubles

To understand Magna Carta requires a bit of background about England in the Middle Ages.3 William the Conqueror — a Norman — brought with him to England French feudalism. Under the Norman way of looking at things, all land belonged to the king. The king then offered some of that land to his “tenants in chief,” or “barons,” in exchange for their pledges of support and military service. Those barons, in turn, lorded it over freemen and serfs.

Because the king was the source of all land, his grants came with strings attached. Among those “feudal incidents” were the king’s right to impose taxes on inheritance and succession, his authority over widows and orphans, and his control of the forests of the land. The Norman kings also asserted authority over legal disputes, especially those concerning property. Under Henry II’s legal reforms in the late 12th century, disputes were directed to the royal courts, where the king or his justices and other royal officials collected various fees, as opposed to the traditional local courts before local barons.

Enter King John. Yes, that King John — perhaps the most unpopular king in all of English history, villain in so many Robin Hood stories.4 When John’s brother, King Richard I, died in 1199, John assumed the throne. His nephew, Arthur, also had a claim to the throne. The always-shrewd Philip II of France supported Arthur’s claim and promptly invaded Normandy. John captured and imprisoned his nephew, Arthur, who refused to acknowledge John’s claim to the throne. John ordered that his nephew be blinded and castrated, an order that was apparently not carried out. Arthur still ended up dead. A chronicler of the time reported that John, in a drunken rage, killed his nephew by tying him to a heavy stone and tossing him into the Seine. There were reasons that John proved an unpopular king.

He also proved an unlucky one. By 1206, John had lost Normandy, Anjou, Maine and parts of Poitou. He devoted the next 10 years of his life to recovering those lost ancestral lands. To finance that effort, John was forced to seek help from the feudal barons in England. He aggressively enforced debts against those barons. He exacted “scutage” payments, that is, fees that a knight could pay in lieu of service to the king. He demanded payments from widows who wished to remain single after the passing of their husbands. He sold charters for new towns and markets. He charged for sheriff appointments (which the sheriffs, in turn, made back through fines and penalties — think, Sheriff of Nottingham5). And he demanded payments upon inheritance of estates and castles. Of course, all of this was not popular with the barons.

Meanwhile, John got into a spat with the pope, Innocent III, which, in an age of faith, did not further endear the king to his subjects. In 1205, the Archbishop of Canterbury died. John favored the Bishop of Norwich as a replacement. The pope favored a candidate of his own, Stephen Langton, and went ahead and appointed him archbishop. There proceeded an escalating series of retaliations: John barred Langton from entering England and seized the lands of the Archbishop of Canterbury. Innocent placed an interdict on England, forbidding clergy from conducting any religious services. The king seized the land of the clergy that complied with the interdict. Innocent, however, played the trump card of excommunicating the king. John eventually caved and declared himself a papal vassal in 1213.

John turned his attention to reclaiming Normandy in 1214, but he failed miserably. On his return to England, he tried to recruit fresh mercenaries. By then, though, the barons had had enough. They met at Northampton in May 1215, renounced their fealty to the king and marched on London. Langton, now Archbishop of Canterbury, attempted to mediate. He had recalled that, a century earlier, King Henry I had issued a “charter” on the occasion of his coronation, which contained the pledge to rule justly and minimize any meddling in the affairs of the barons. Using that as a model, Langton drafted a document, the “Articles of the Barons,” that listed their demands.

Initially, John rejected the Articles. “Why do not the barons, with these unjust exactions, ask my kingdom?” he asked.6 But the king soon found his position untenable, and once again he caved. He sealed the document on June 15 at Runnymede — located halfway between Windsor Castle and the rebel base in London — and the barons renewed their oaths of fealty. Copies of the charter were made and circulated throughout the land.

The Great Charter

What later became known as “Magna Carta” (it didn’t have that name yet) was not written on paper, but on sheepskin parchment. It was not written in English, but in Latin, with iron-gall ink (a mixture of iron sulfate, acacia sap and tannic acid from oak galls). It was not signed, contrary to many woodcuts and paintings of the event; rather, it was sealed with beeswax.7

The vast majority of the document related to the medieval concerns of feudal barons. There were clauses (later numbered into 63 “chapters”) that deal with inheritance. Chapters 2 and 3, for instance, limited the “reliefs” (taxes) to be paid on inheritance, while chapters 4 and 5 limited the fees that guardians can take from lands they hold for underage heirs. Chapter 27 sets out rules of intestacy. A number of provisions concerned widows and orphans. Thus, chapter 7 protected a widow’s dower rights, while chapter 8 provided that “(n)o widow shall be compelled to marry so long as she has a mind to live without a husband.” There were provisions about ransoming the king and those concerning trade. Chapter 33, for example, provided that “all fish-weirs will be completely removed from the Thames and the Medway,” as such things slowed river navigation and stalled commerce. Other clauses related to the authority of the king to regulate royal forests. Still others concerned such minutiae of feudal existence as establishing a uniform measure of wine, ale and “corn.”8

Of interest to lawyers, Magna Carta included several provisions related to the administration of justice. Chapter 18, for example, established venue for trials concerning certain real property disputes, namely in the county where the property was located. Chapter 20 — antedating Gilbert and Sullivan by some 700 years — provided that “(a) free man shall be amerced (fined) for a small fault only according to the measure thereof, and for a great crime according to its magnitude.” Chapters 28, 30 and 31 prohibited the king or his bailiffs from taking various kinds of property — specifically corn, chattels, wood, horses or carts — without the owner’s consent.

Importantly, there were a few, broadly worded provisions about much more. In particular, there were chapters 39 and 40, the famous “law of the land” and access to justice guarantees.

Chapter 39 declared that “(n)o free man shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers and (or) by the law of the land.” There is some uncertainty about the translation of the connecting word, the Latin word “vel.” Often, it is translated as “and,” so that no one may be punished except by both judgment of peers and the law of the land. Historians, however, tend to agree that the word is disjunctive and that the intention was to create alternatives — no one may be punished except by either a judgment of peers or by the law of the land.9 There is less uncertainty about what Chapter 39 meant by a “judgment of his peers.” It did not refer to jury trials, as such practices were embryonic at that time. Rather, it referred to judgment by barons or other freemen.

Chapter 40 stated, “(t)o no one will We sell, to none will We deny or delay, right or justice.” It did not mean that justice did not come with a price tag. It meant that justice was not to be corrupted, that it was not for sale to the highest bidder, and instead was to be meted out fairly and impartially to all.

Annulment and Failure

In its own time, Magna Carta was a spectacular failure. Disputes arose almost immediately over its implementation. King John asked the pope to intercede. Innocent — now John’s faithful friend — complied, annulling the charter on the ground that it had been secured under duress. Innocent called Magna Carta “not only shameful and demeaning, but illegal and unjust,” and excommunicated the barons.10 In the end, the original Magna Carta lasted a total of 66 days. A war with the barons followed in 1216, but John contracted dysentery and, following a meal ending with a “surfeit of peaches” and cider, he died, leaving the country in chaos.11

John’s son, Henry III, was only 9 when his father died. His supporters, wary of his precarious position, resuscitated the Great Charter. They shortened it and took out several clauses pertaining to the forests, putting them in a separate “Charter of the Forest.” The revised document was then incorporated into the peace treaty that ended the civil war in 1217. It was at that time that it became known as “Magna Carta” — literally, the “big document” — to distinguish it from the Charter of the Forest. Henry III reissued Magna Carta yet again, in 1225, in exchange for new taxes. And, in 1297, Edward I confirmed Magna Carta and the Forest Charter yet again, this time as statutes and not just political documents.

Over the course of the next century, Parliament adopted further revisions to Magna Carta. Of particular interest, it specified that the phrase “lawful judgment of peers” included a trial by jury. It also defined the “law of the land” in terms of “due process of law,” a phrase that was to have remarkable influence in coming centuries. And Parliament further altered that provision to apply not just to free men, but to all men, “of whatever estate or condition (they) shall be.”

As years passed, Magna Carta remained an important source of property law for lawyers. But beyond that, its significance gave way to a developing system of writs and to newer statutes. A mark of how little Magna Carta mattered by Tudor times is the fact that Shakespeare’s “King John” does not even mention it.

 

Coke and the Resurrection of Magna Carta

By the 17th century, England experienced a renewed interest in its past and with it, a romanticized version of Magna Carta emerged. According to this view, the rights of all English citizens had their origins in ancient customs that the Norman conquerors had overthrown. Magna Carta restored those rights as against the abuses of King John and his successors. The Great Charter, then, was viewed as the written confirmation of age-old and immutable rights and liberties that even the king could not abrogate.

That revisionist view of Magna Carta became a powerful weapon for those who opposed the efforts of the Stuart kings to press the prerogatives of the monarchy under the doctrine of the divine right of kings. Sir Edward Coke became a champion of that opposition and of the romanticized view of Magna Carta. As chief justice of the Court of Common Pleas (and later of the King’s Bench), Coke found himself at odds with King James I over the question whether the courts were independent of the crown. James took the position that he possessed the authority to consult with judges on cases of interest to him, as “the Judges are but delegates of the King.”12 Coke disagreed. Invoking Magna Carta, he declared that, “The king is under God and the law.”13 The dispute cost Coke his position on the bench and landed him, for a time, in the Tower of London.

Coke took up politics and was elected to Parliament, where he repeatedly decried the loss of liberties that he found rooted in Magna Carta. When James I died, Charles I assumed the throne, and the new king was even more enthusiastically absolutist than his predecessor had been. To raise money to wage war on the continent, he forced a number of loans without the sanction of Parliament and, when the debtors did not pay, declared martial law and imprisoned them without trial. Parliament took offense and responded with a set of resolutions objecting to those and other actions of the king. The king rejected the resolutions and dissolved Parliament. In response, Parliament issued a “Petition of Rights.” Drafted under Coke’s watchful eye, the petition expressly restated the continuing vitality of Magna Carta and declared the rights of royal subjects to be free from martial law, taxation without Parliament’s approval, imprisonment without trial and the forced billeting of soldiers.

Coke eventually retired and devoted himself to completing his scholarly writing. Following the tradition of the times, he started by writing a commentary on established authorities, a 15th-century text on property law. His Institutes, however, ranged far beyond English land law and touched on a wide variety of other subjects, including Magna Carta.14 In Coke’s view, Magna Carta was not an ad hoc statement of feudal baronial grievances, but a declaration of a foundational principle — ancient even in King John’s time — that all are subject to the law, even the king.15

Magna Carta in America

Scholars have criticized Coke’s “reinterpretation” of Magna Carta as anachronistic and fanciful.16 But the fact remains that it was terrifically influential, especially to colonial Americans. His Institutes served as basic law texts for generations of colonial lawyers. Coke, moreover, had a hand in drafting the first Virginia Charter, drawn in 1606, which granted to all who dwell in the colonies “all liberties, Franchises and Immunities” that they would have if living in England, rights that Coke found rooted in Magna Carta. The General Assembly of Maryland declared in 1639 that, “the Inhabitants of this Province shall have all their rights and liberties according to the Great Charter of England.” Similar guarantees later appeared in the charters of Massachusetts Bay, Maryland, Connecticut, Rhode Island, Carolina and Georgia.

The notion that the American colonists were heirs to certain fundamental rights secured in Magna Carta took deep root. Thomas Paine in his tract “Common Sense” called for a “continental conference,” the job of which would have been “to frame a Continental Charter or Charter of the United Colonies — answering to what is called the Magna Charta of England . . . securing freedom and property to all men.”17 In 1774, the first Continental Congress adopted a resolution declaring that the colonists were doing “as Englishmen their ancestors in like cases have usually done, for asserting and vindicating their rights and liberties.”18 The first seal of the state of Massachusetts showed a man with a sword in one hand and a scroll labeled “Magna Carta” in the other. The constitutions of a number of the states incorporated guarantees into their bills of rights that were patterned after the “law of the land” provision of chapter 39 and the open courts provision of chapter 40 of the original Magna Carta of 1215.19

Magna Carta Today

Back in England, the law reforms of the 19th century spelled an end to much of the actual text of Magna Carta. Most of it was, after all, devoted to the peculiar concerns of medieval feudalism. By mid-century, Parliament had repealed some 17 chapters, and in the 1880s, it pruned even more. In 1965, Parliament created the Law Commission to review potentially obsolete legislation. The commission proposed the repeal of over 200 such laws, including eight more chapters of Magna Carta. There remain today only a handful of provisions from the original, among them the “law of the land” guarantee of chapter 39.

In this country, Magna Carta is still regarded with something close to reverence. It has been cited in countless works of literature and politics. John Philip Sousa composed a “Magna Charta March.” President Franklin Delano Roosevelt cited it in his 1941 inaugural address, proclaiming that “(t)he democratic aspiration is no mere recent phase in human history. … It was written in Magna Carta.” Billionaire Ross Perot purchased a copy of the 1297 charter and then auctioned it off for a breathtaking $21.3 million, reportedly the most ever for a single-sheet vellum manuscript. As recently as 2011, three New Hampshire legislators introduced a bill providing that any new legislation concerning individual rights or liberties “shall include a direct quote (presumably translated into English) from the Magna Carta which sets forth the article from which the individual right or liberty is derived.”20 More recently still, hip-hop superstar Jay Z released an album entitled “Magna Carta Holy Grail,” which went double-platinum in less than two months. There is even a Baronial Order of Magna Carta — 16,000 members strong — which meets annually every June 15 to commemorate the Great Charter just outside Philadelphia, at the Corinthian Yacht Club.21

Courts routinely cite the Great Charter, particularly when they want to emphasize the antiquity of a point of law. Federal courts have cited it more than 550 times since 1940. Justice David Souter, for instance, invoked it in his 2012 dissenting opinion in Hamdi v. Rumsfeld, observing that “we are heirs of a tradition given voice 800 years ago by Magna Carta, which, on the barons’ insistence, confined executive power by ‘the law of the land.’ ”22

In state courts, Magna Carta is more than a rhetorical flourish, as state constitutions include “open court” and “remedy” provisions that can be traced back to the Great Charter, or at least to Lord Coke’s reimagining of it. The Oregon Supreme Court has invoked Magna Carta in no fewer than 19 cases, most of those in the last two decades, during which the court has given greater weight to the history of the state’s constitutional rights. As recently as last year, the court heard argument about the extent to which its prior cases have properly understood the historical context for the Article I, section 10, guarantee that every person shall have remedy “by due course of law.”23

So the 800-year-old document lives on. Its original purposes and provisions may now be largely obsolete or forgotten, relics of a bygone era that is the stuff of history books and episodes of Masterpiece Theatre. But the wording of key provisions proved broad enough to be adaptable to conditions unimagined by the barons and their feckless king. And the very fact that King John was pressed into agreeing to its terms established the enduring principle that all — kings, barons, presidents and common citizens alike — are subject to the rule of law. The anniversary of that event certainly is worth remembering and celebrating today.

 

Endnotes

1. Sources and Debates in Modern British History: 1714 to the Present 209 (Ellis Wasson ed. 2011). Churchill added “the Bill Rights, the Habeas Corpus, trial by jury and the English common law” as additional portions of that “joint inheritance.” Id.

2. A.E. Dick Howard, Magna Carta: Text and Commentary 3 (revised ed. 1998).

3. For those who want to know more about the origins of Magna Carta, the standard historical reference is J.C. Holt, Magna Carta (2d ed. 1992). A third edition is planned for later this year, in time for the 800th anniversary.

4. As the Benedictine chronicler Matthew Paris observed in his 13th-century Chronica Majora, “John was a tyrant. He was a wicked ruler who did not behave like a king. He was greedy and took as much money as he could from his people. Hell is too good a place for a horrible person like him.” That John has been held in such low regard is perhaps illustrated by the fact that, since the Norman Conquest, the English monarchy has included four Williams, eight Henrys, three Richards, eight Edwards, two Jameses, two Charleses — and only one John.

5. In the small world department: William Brewer, the first Baron Brewer (also known as “William de Briwere”), was appointed Sheriff of Nottinghamshire during King John’s reign. He also served as Sheriff of Devonshire, Oxfordshire, and Buckinghamshire, among other places, and was a prominent advisor to John. In fact, he is listed as among the witnesses to Magna Carta in 1215. Whether Brewer was the infamous Sheriff of Nottingham who was the supposed nemesis of Robin Hood is unknown (as is whether Robin Hood ever actually existed), but he certainly was unpopular — so much so that the people in his counties took up a collection to pay to have him removed. William Hunt, 6 Dictionary of National Biography 297 (1885-1900). I have it on good authority that Brewer is the distant ancestor of our own (and much more popular) Dave Brewer, associate justice of the Oregon Supreme Court. 

6. Debbie Levy, The Signing of the Magna Carta 58 (2008).

7. One of the four surviving originals still has the seal, though a 1730 fire in the British Library melted it, so that it now looks like what one historian called “chewed-up toffee.” Nicholas Vincent, Magna Carta: A Very Short Introduction 2 (2012).

8. Some explanation of the use of the word “corn” will help here. In our country, the word “corn” refers to maize, which was unknown in Europe until Columbus returned from Cuba in 1492. 1 The Cambridge World History of Food 105 (Kenneth F. Kipple and Kreimhild Conee Ornelas eds. 2000). In Europe, however, the same word has long been used as a generic term for various grains — wheat, barley, or oats. The King James translation of the Bible, for example, refers a number of times to “corn” being stored in Egypt. See, e.g., Genesis 41:57 (“And all countries came into Egypt to Joseph for to buy corn.”) (King James).

9. Holt, Magna Carta at 328.

10. Quoted in Samuel E. Thorne, “What Magna Carta Was,” in The Great Charter 23 (1965).

11. Robert Gambles, Great Tales from British History: Was Queen Victoria Ever Amused? And 39 Other Intriguing Historical Questions Answered 16 (2009). There’s some uncertainty about whether it was actually peaches (which were rare at the time) or pears, but the point remained that John overindulged.

12. Catherine D. Bowen, The Lion and the Throne: The Life and Times of Sir Edward Coke 294 (1956).

13. Id.

14. Coke wrote four Institutes. The first was his commentary on Littleton; the second, on principal statutes (starting with Magna Carta); the third, on criminal law; and the fourth on jurisdiction. See generally Theodore F.T. Plucknett, A Concise History of the Common Law 281-84 (5th ed. 1956).

15. Coke died in 1634, but he got the last word on Charles, who lost his head during the civil war of the 1640s. Not everyone, however, shared Coke’s romanticized view of Magna Carta. Oliver Cromwell, who served as “Lord Protector of the Commonwealth” following the execution of the king, referred to the Great Charter as “Magna Farta,” which he viewed as threatening a tyranny of Parliament and judges. Nicholas Vincent, Magna Carta: The Foundation of Freedom 1215-2015 14 (2014).

16. Radin, for example, complained of Coke’s “absurd claim for the antiquity of the Common Law” and “his complete misunderstanding of Magna Carta.” Max Radin, Anglo-American Legal History 286 (1936). It turns out that taking shots at Coke for the inaccuracy of his history is rather easy pickings. Coke’s work was often suspect; he had a tendency to make things up to meet his needs. As Plucknett observed, for example, Coke “had a very curious habit of using passably good Latin maxims which usually had an air of antiquity about them, in spite of the fact that he himself invented them.” Plucknett at 283.

17. Thomas Paine, Common Sense: Addressed to the Inhabitants of America 35 (1922 ed.).

18. “Declaration and Resolves of the First Continental Congress (October 14, 1774),” in The American Republic: Primary Sources 154 (Bruce Frohnen ed. 2002).

19. See generally A.E. Dick Howard, The Road From Runnymede: Magna Carta and Constitutionalism in America 203-15 (1968).

20. Karen Langley and Matthew Spolar, “‘Eight hundred years later, an inspiration’: New bills would cite Magna Carta,” Concord Monitor (Dec. 24, 2011) (online at www.concordmonitor.com/article/300270/eight-hundred-years-later-inspiration ).

21. Membership is limited to those Americans who can trace their lineage to one of the 25 barons who met King John at Runnymede, a task made easier by the work of Charles Browning, who detailed a genealogy of the barons down to 1915. Charles H. Browning, Magna Carta Barons and Their Descendants (1915).

22. Hamdi v. Rumsfeld, 542 US 507, 552, (2004) (Souter, J. concurring and dissenting).

23. Horton v. OHSU (S061992) (argued November 6, 2014).

 

ABOUT THE AUTHOR
Jack Landau is an associate justice of the Oregon Supreme Court. No law clerks were harmed in the preparation of this article. Thanks to Michael Simon and Lauren Eldridge for helpful comments.

© 2015 Jack Landau


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