October 12, 2011
The Magna Carta: Ideas for All Seasons
Rex no potest peccare (The King can do no wrong)
How many of you have read Unbroken, the bestseller by Laura Hillenbrand about Olympic runner Louis Zamperini ‘s experiences in World War II? Perhaps you will remember the part when Louie and his friends are in a particularly brutal Japanese prisoner of war camp where the Geneva Conventions are ignored and the rule of law is only a memory. In effort to distract themselves from mind numbing cold and starvation, the prisoners take to discussing the Magna Carta and its effect on medieval history. How amazing that in the midst of such deprivation, men on the edge of death focused on the Magna Carta. What a poignant example of the power and durability of the ideas in the Magna Carta. Powerful ideas – those that resonate within the human spirit — endure despite the historical accidents of their creation. The origin of this magnificent heritage was not promising. On the one side was an incompetent reckless King and on the other, a small group of landed hereditary nobility who were tired of the King’s endless demands.
We venerate the idea of the Magna Carta — that freedom is secured under the rule of law and that no person is above the law — even though the Magna Carta or The Great Charter as it later came to be called, was literally nullified within weeks of its sealing. The creation of the Magna Carta was a revolutionary response by a ruling class of barons who were not much different from the despotic monarch they despised. The Magna Carta gave life to the concept that individuals had rights against the previously unlimited power of the state. On June 15, 1215, on a beautiful meadow in Runnymede, halfway between London and the still royal palace at Windsor, 25 of England’s most powerful barons presented a document to King John essentially requiring the King to follow certain rules in dealing with English nobility and, especially, with their property. As was the custom with royal edicts, the King “sealed” the document, signifying approval.
Within days, seven copies of the document sealed by King John were issued from Runnymede and circulated throughout the kingdom; within weeks, six more were issued from Oxford. Even as these Magna Carta copies were being circulated, King John dispatched his envoys to Rome to complain to Pope Innocent III that he had been compelled by “force and fear” to seal the document. By mid-September, 1215, King John’s envoys had returned with papal edicts declaring the Magna Carta contract to be null and void. The Magna Carta had been in effect less than 90 days. Although reissued three times during the reign of John’s son, Henry III, and confirmed by the Crown more than 30 times thereafter, the provisions of the 63 specific “chapters” of the 1215 Magna Carta have largely been repealed and, in any event, never again existed in precisely the form presented to King John at Runnymede in June, 1215.
Remarkably, even though the Magna Carta’s specific provisions were abandoned or repealed, this was no 90 day flameout. Today, somewhere between a quarter and a third of all mankind is governed according to the principles it enshrined. We trace our written constitution, our right to equality and due process under law, our right to a jury trial and our habeas corpus rights to the document presented to King John on June 15, 1215.
The Magna Carta really represents two separate meanings, one literal and one symbolic. The literal meaning arises from the circumstances of 13th Century England and the dispute between and among a tyrannical and foolish monarch, a powerful Church based in Rome and a largely independent group of hereditary noblemen who were increasingly impatient with the personal cost to them of the King’s bad decisions. The symbolic meaning developed over time and is reflective of an ever changing political landscape. The literal meaning came to reference the rights enforced against a monarch by the English nobility; it was the resolution of a power struggle. The symbolic meaning became, and is, increasingly associated with a concept we call the “rule of law”, defined as an impartial justice system which is predictable and fair and which treats all people equally. It might be useful to take a few minutes to review the historical context in which the Magna Carta arose since it does help us to understand the symbol which the Magna Carta became.
There is nothing more difficult to take in hand, more perilous to conduct or more uncertain in its success, than to take the lead in the introduction of a new order of
Historians now think that there was probably very little pomp and ceremony attendant to the proceedings at Runnymede. King John clearly did not want to be a participant but had little choice. The 25 Barons were angry mostly about a seeming never ending increase in royal taxes and required payments but also had little choice. Unlike other times of feudal rebellions in English history, there was no readily identifiable royal replacement for the reigning king. King John believed, probably correctly, that he would be killed if he did not agree to the Barons’ terms.
Much of the language of the 1215 Magna Carta had been smoothed by Stephen Langton, the Archbishop of Canterbury whose appointment by Pope Innocent III King John had initially opposed. The document which emerged from this turmoil was the product of three competing judicial traditions: royal, ecclesiastical and baronial.
The royal justice system involved all matters that affected the King’s “peace,” whether directly or indirectly. Needless to say, these courts broadly interpreted matters affecting the King’s peace and were often seen as arbitrary and unfair. The Catholic Church, headquartered in Rome, ran the ecclesiastic courts which maintained jurisdiction not only over matters involving the Church’s clergy and religious offenses but most moral, marital and testamentary matters. Barons were given their titles and their large tracts of real property by the Crown; in turn, a Baron, as Lord of the Manor, was given authority to hear disputes involving his tenants who had agreed to work the land in exchange for shelter and security.
King John, whose reputation as wretched monarch has not changed much in the last 800 years, managed to alienate both the ecclesiastical and baronial jurisdictions early in his reign as King. During the first ten years of his monarchy, King John was constantly at odds with the Church since he regarded the Pope to be subordinate to the Crown, a view not shared by the Pope. The Holy Roman Empire, as the Church was frequently known, regarded itself to be a separate and independent sovereign that had shared power with the Crown since its agreement with English King Henry I about one hundred years earlier. The agreement essentially provided that while the nomination of the archbishops serving in England would remain with the Crown, the power to confirm the bishops through the granting of their religious symbols and authority remained with the Church.
This compromise worked well until King John’s choice for Archbishop of Canterbury was rejected by Pope Innocent III who substituted his own choice, Stephen Langton, a man of “superior moral and intellectual greatness. ” King John’s response to Archbishop Langton’s appointment was to confiscate all of the Church’s property in England. This, of course, did not sit well with the Pope who excommunicated King John, suspended religious sacraments in England and declared the English empire a “forfeit from God.” King John was neither smart enough nor strong enough to withstand this kind of pressure from Rome and ultimately capitulated, giving England to the papacy and receiving it back as a “fief” which meant that the Crown was now subordinate to Rome and required to pay homage to the pope. These concessions seemed to have assuaged Pope Innocent III who became a “cautious” ally of the King.
Law and justice are not the same. Gloria Steinem
The Barons’ dissatisfaction with King John was based on systemic and increasingly abusive requirements of the royal justice system. King Henry II had created a centralized royal justice system which the King’s officials administered in a uniform manner to all English people in common and thus the phrase “common law.” Although all litigants appearing in the king’s courts theoretically would be treated the same, almost unlimited discretion was vested in the power of the Crown. It was this potential for arbitrary power that was exploited by King John and lead eventually to the Magna Carta.
King John evidenced great skills as an abuser of judicial prerogatives. He regularly sold legal rights and privileges to the highest bidder and used the judicial system to reward favorites and punish enemies. Before a matter could be heard in a royal court, the parties were required to pay “monarch fees” which were neither uniform nor fair. If the Crown was in need of revenue — which was frequently the case during King John’s reign – litigation fees were increased to cover the royal need without reference to the dispute involved. There were fees for postponements and fees for nearly every aspect of the proceedings and these fees were separate and distinct from fines imposed on losing parties or to purchase freedom in case of incarceration.
Litigants who could not afford to pay the legal fees set by the Crown were forced to borrow from the King in order to pursue a case. Not surprisingly, the terms of these loan agreements were harsh, usually requiring the debtor/litigant to pledge his estate, personal property and, on occasion, family members. Some of the provisions of the 1215 Magna Carta seem peculiar until one understands that on more than one occasion, friends and family members of a debtor were literally held hostage by King John until the loan was repaid in full.
Of course, the King could also simply “forgive” a loan because the debtor was a friend, was a necessary political ally or had provided an “invaluable” service. During King John’s reign, the “invaluable” service usually involved military duty. In the 13th century, all barons were required to serve in the King’s army as well as providing a specific number of knights for military service. As was true with most things, a money fine could be paid to the King in lieu of service and a tax, called “scutage”, could be paid in lieu of knights’ service. Since these were obligations owed to the King, the King could, and did, increase these fines and taxes at whim. King John did so frequently to finance his many military campaigns and to pay the mercenaries he hired to fight on his behalf.
King John was no better a soldier than he was statesman or monarch. With each military defeat, the economic demands on the barons caused by King John’s failures seemed more ludicrous and less justified. By 1215, many barons had renounced loyalty to King John and were actively plotting his overthrow. Of course, this was not unique to1215; almost every English King after William the Conqueror had faced rebellious nobility. This time was different, however, in that there was no “obvious replacement” for King John who had, according to some historians, murdered several potential substitutes. Consequently, the barons decided to focus on King John’s “oppressive government”, particularly the abuses of the legal system which were so costly to them. King John offered to submit the barons’ complaints to a committee of arbitration, chaired by his new best friend, Pope Innocent III. But the Barons were having none of that and, on June 10, 1215, they entered London in force through the open gates of the city. This normally would have been the signal for violent rebellion and King John, then safely ensconced at Windsor Castle, knew it.
It was out of these circumstances that the “Articles of the Barons,” later called the Magna Carta, was sealed by King John in the Runnymede meadow on June 15, 1215. In exchange for the King agreeing to their demands, the barons renewed their oaths of fealty to King John on June 19, 1215. Seen in this context, the Magna Carta is less a statement of lofty legal principles than a pragmatic attempt by the English barons to limit the monarch’s otherwise unlimited powers while protecting their privileges. Almost every one of the Magna Carta “chapters” addresses an issue arising directly from the complaints described above.
The grievances that King John promised to redress in the Magna Carta reflect both the complaints motivating the barons and, almost coincidentally, provide its subsequent symbolic importance. The 1215 Magna Carta promised that justice would not be “sold denied or delayed,” and ensured that certain rights and procedures would be “granted freely.” You now understand the importance of its guarantee of the safe return of hostages, lands, castles and family members who had been, or were being, held as “security” for military service or loan agreements. Its other provisions similarly addressed the various abuses employed during King John’s reign.
As I said earlier, however, the Magna Carta was swiftly annulled by Pope Innocent III, finding it a “shameful and demeaning agreement, forced upon the King by violence and fear” and releasing King John from his oath to obey it. That action plunged England into a civil war known at the First Barons’ War as the barons reverted to a more traditional type of rebellion, replacing a disliked monarch with one whom they liked better. In that instance, and as perhaps the best evidence of the barons’ desperation, the crown of England was offered to Prince Louis of France. As a means of preventing war or as a method of dispute resolution, the 1215 Magna Carta was a failure and was only legally valid for, at most, three months.
However, as a symbol of a written contract between the governed and the government, the Magna Carta endured to become the basis of our own written constitution. What began as essentially a peace treaty between the barons and the king evolved into the basis for constitutional government in the United States and elsewhere. Ironically, it was the death of King John in 1216 which assured that the Magna Carta would survive. At the conclusion of the civil war in 1217, the Magna Carta was reissued on behalf of Henry III, John’s young son. It is that version of the Magna Carta which is with us here today and which became part of English constitutional law, confirmed by later kings and interpreted by Parliament. The differences between and among the many versions of the Magna Carta have occupied scholars for centuries but that is a discussion for another time. What is clear, however, is that the ideas which found their first expression in 1215 in the document forced upon King John have come to us in an almost unbroken path to form the basis of much of our constitutional tradition.
No shall any person be. . .deprived of life, liberty, or property without due process of law. United States Constitution
Everything from the phrase “due process of law” to the right of trial by jury, to the concept of habeas corpus, to the American Revolutionary slogan of “no taxation without representation” to the Equal Protection Clause which forms the basis for both the civil rights and equal rights campaigns can be found either explicitly or by inference in the Magna Carta as even a brief examination of the Magna Carta will show.
The phrase “law of the land” appears throughout the Magna Carta without ever being defined. Nevertheless, it is this phrase which forms the basis for much of the document’s symbolic meaning and modern day courts have found relevant constitutional meaning in the context in which it was used.
In the American colonies, the Magna Carta’s “law of the land” phrase became equated with “due process of law,” a legal principle that has been the cornerstone of procedural fairness in American civil and criminal trials since the late 1700’s. The “due process clause” of the Fifth Amendment to the United States Constitution by itself and through its incorporation into the 14th Amendment is the foundation of both procedural fairness in American law and courts and as the basis for fundamental substantive rights, like the right to privacy. Similarly, the Magna Carta linked this “law of the land” notion with the right to a trial by jury, providing that “no free man” would be “seized, imprisoned,. . .outlawed or exiled or injured in any way. . . except by lawful judgment of his peers, or by the law of the land, [emphasis added]. In 1215, “lawful judgment of his peers” was accomplished through a proceeding in which 12 knights or landowners familiar with the subject at issue took an oath and swore to testify truthfully about what they knew based on their own observations and other first hand sources. This process, which gave rise to many of our otherwise inexplicable evidentiary rules, was a form of peaceful fact finding far preferable to the trial by battle which characterized dispute resolution before that time. This process of adjudicating disputes by a jury of one’s “peers” became embodied in the 7th Amendment to the United States Constitution as the modern day right to trial by jury by a “truly representative” cross section of the community.
The same section of the Magna Carta also contains the seeds of modern habeas corpus, a legal phrase frequently used and perhaps less often understood. Habeas corpus, which literally means “to bring the body,” is a proceeding to determine whether a person who is jailed, imprisoned or otherwise detained by the government is being lawfully held. If it is decided that the person was detained through “due process of law,” then continued detention is permissible either through trial (if it hasn’t occurred) or post conviction. The Magna Carta similarly permitted continued incarceration if the person’s initial detention was by “the law of the land.”
The United States Supreme Court has also identified the Magna Carta as an early source of the “proportionality” analysis associated with the 8th Amendment to the United States Constitution. The Magna Carta prohibited the king from imposing a fine “unless according the measure of the offense.” It further provided that “for a great offense [the defendant] shall be [punished] according to the greatness of the offense.” We now understand that this language was intended to prevent King John from raising and lowering the various fines in the royal courts at whim. The United States Supreme Court, however, found in this concept the prohibition against both state and federal governments from imposing fines and other forms of criminal punishment that are disproportionate to the seriousness of the crime for which the defendant was convicted. Some of you may remember particularly onerous fines or prison terms for a wide variety of motor vehicle offenses and misdemeanors. Challenges to these statutes have invariably raised the 8th Amendment’s proportionality argument and have often prevailed on this point.
Nor is the contemporary significance of the Magna Carta limited to criminal and civil procedure. Early versions of the Magna Carta prohibited the Crown from assessing any military tax (such as “scutage” which I described earlier), “except by the common counsel of [the] realm.” The “common counsel of the realm,” comprised as it was of representatives of English society including clergymen and nobility, was a forerunner of both the English Parliament and, later, of the US Congress.
As it evolved, the common counsel limited the monarch’s and then the government’s power to pass legislation, particularly tax legislation, without popular consent. The existence of this tradition involving tax legislation can be seen in one of our most familiar American sayings: “no taxation without representation.” The representation the Colonists knew and were describing arose from the common counsel which, by the 1770’s, had firmly established its right to be heard on tax legislation, a clear inheritance from the Magna Carta. The hated Stamp Act, passed by Parliament without any participation by the people who would be required to pay it, was opposed at the time as an illegal attempt to raise revenue in violation of the Magna Carta. Indeed, the Magna Carta was much in the mind of the colonists, some of whom contended that “the assembly of barons at Runnymede, when Magna Carta was signed [sic],” was the precedent for the convening of the Continental Congress.
What began as a peace treaty between a despotic King and his angry Barons became a lasting symbol of a written contract between the governed and their government, a contract that even included the right of rebellion when that government ruled without popular consent. The ideas in it endured and were expanded, restated and written into law governing generations of Englishmen, their colonists and, ultimately, countries around the world.
No man is above the law and no man is below it; nor do we ask any man’s permission when we ask him to obey it. Obedience to the law is demanded as a right; not asked as a favor.
Over time, the Magna Carta also came to represent the “rule of law” which, at its core, is an idea that all governments are bound by law. This distinction between a government which governs according to law and one which governs according to the will of a sovereign did not begin with the Magna Carta but certainly found its roots in the notion that no government official, not even one who claimed to rule by divine right and asserting absolute power, is above the law. This was truly revolutionary in 1215 and, as we have seen in the events around the world of the past few months, revolutionary even today.
Finally the Magna Carta has come to symbolize equality under the law. Certainly the Barons who met King John at Runnymede were a privileged class of male, often hereditary, landowners. But the Magna Carta also contained some protections for women, like the right to refuse to marry and the protection of a widow’s dower interest in one third of her husband’s property. It also, given the times and privileged class who authorized and authored the document, contained some provisions that seemingly applied to every person in the realm, whether “free” or not. For example, “no one” could be compelled to perform service for a knight’s fee. Even more importantly was the clause which provided that “justice” will be sold to “no one.” On the literal level, we can understand that this prohibition arose in response to the abuses of the royal justice system. But as the words have come down to us some 800 years later, we understand the fundamental legal principle that everyone, rich and poor, man or woman, regardless of color or ethnicity must be treated the same under law. It is this principle which found its expression in the Equal Protection Clause of the 14th Amendment to the US Constitution and which, as interpreted by the highest court in our land, invalidates laws that discriminate or have discriminated on the basis of race, gender, national origin or religion. It is the most American of guarantees and one which still illuminates our imperfect path to the promise of America.
A people that values its privileges above its principles soon loses both.
We can trace the profound and important Magna Carta tradition back to the Runnymede meadow nearly 800 years ago when a group of courageous Barons engaged in a revolutionary act that would resonate through the ages. It is worth remembering how much we owe to this now ancient manuscript and the ideas it represents. But we must also remember that this gift is not irrevocable and must protected and nutured in each generation. The rule of law is what separates us from every other form of government since the beginning of time and our inability or failure to recognize that is, in my view, is perhaps the biggest threat to our way of life.
On June 15, 2015, we will return again to the Runnymede meadows to recall this remarkable story. We will recognize our debt to the Barons who decided that they had had enough. Most of all, however, we will celebrate the power of the ideas that endure here and on the streets of Cairo, Tunis, Benghazi and elsewhere as students, lawyers, workers, families, soldiers and shopkeepers call for the rule of law. What a powerful and wonderful idea!
Thank you for the opportunity this has given me, a lawyer, to reflect on all we have inherited from this timeless document.
Magna Carta 800th Anniversary 2015 Committee