Magna Carta: Accidental and Cautionary
Magna Carta: Accidental and Cautionary
Published in the Daily Record June 22, 2015
Eight hundred years ago this month, at a spot that now looks up at a glide path for jets coming into Heathrow from the west, England’s King John signed a parchment of some approximately 3600 words of Latin. Today we call the parchment Magna Carta (“great charter”). It didn’t have that name at the outset, and didn’t get that name, when it did, to praise its greatness. (The name evolved simply to distinguish it from a smaller document, the Forest Charter.) Like practically everything about Magna Carta, the name was unforeseeable when it was issued, and shaped by the accidents of time.
Forget the Scutage; It Was the Due Process
The bulk of Magna Carta deals with concerns of great interest in 1215 but neither very interesting nor very comprehensible eight centuries later: fine adjustments to the relationships among the free peasants, the gentry, the nobility, the Church, and the King; struggles between river fishermen and cities that depended on navigation for trade; debts owed Jewish moneylenders; national relations between England and its semi-vassal lands Wales and Scotland. Even the vocabulary is strange: scutage, and novel disseisin, and wapentake. And most of it you don’t need to know now; time has washed most context away.
What remain today are only the most important things: the rule of law and due process, and their inevitable concomitant we now call separation of powers. They were the most important things back in 1215 as well. The other issues were attracted to the document like iron filings to a magnet; but the magnet was the struggle over how the land was to be governed. John’s exactions had precipitated that struggle.
Kleptocrat at the Bargaining Table
John had become a master of squeezing out of British citizens of all classes taxes and forfeitures and revoked tenancies and debts purchased from third parties. A lot of his rapacity was deceitful and a whole lot of it was lawless. John needed the loot to finance a war he could neither afford nor win: the fight to save Normandy, a land the British crown claimed, from the clutches of Philip Augustus, the French king. In retrospect, the notion that medieval Britain could have held onto pieces of France permanently seems like foredoomed folly; there was this Channel and two diverging national cultures separating them, after all. And a kleptocratic government was never going to work over the long term in England, either. Eventually, predictably, the barons rose up, and John was facing both a revolution and insolvency. He had to parley and deal.
Central to the shape of the deal was bound to be his history of misgovernment. He may have been the king, but he had stolen from his citizens, and so there had to be a mechanism to make him disgorge his takings. He may have been the king, but no one was going to be safe unless he acknowledged that he was subject to the laws. And there had to be a mechanism to force him to follow the laws, because his word counted for nothing; too many people had been burned by his deceitfulness and his cruelty, like the mother and the scion of the Briouze family, starved to death in each other’s presence (the mother having eaten her son’s cheeks).
Checks and Balances
From these conditions were born the provisions (many of them) that held that the King must follow “the law of the land,” and that he might seize or tax only according to that law and by means of “judgment” (what today we call due process) and not by mere royal fiat. And just as important were three enforcement mechanisms. Taxes had to be approved by a representative assembly summoned at 40 days’ notice. The local royal courts had to be overseen by local knighthood to act as a check on the notoriously rapacious sheriffs who ran them. And John’s big thefts, both past and prospective, were to be reversed and prevented by a permanent council of 25 magnates.
The most famous provision, a sort of Fifth Amendment for the Thirteenth Century, proclaimed: “No free man is to be arrested, or imprisoned, or disseised, or outlawed, or exiled, or in any way destroyed, nor will we go against him, save by the lawful judgment of his peers or by the law of the land.”
Not So New, But Maybe Revolutionary
These “novelties” had been kicking around for some time, in England and elsewhere, and Magna Carta was thus not as original as some who celebrate it have persuaded themselves. (Similar developments were also occurring in Spain and Hungary.) But if implemented fully, Magna Carta would have been nothing short of revolutionary in its effect on England.
John had no intention of allowing that revolution, and he quite nearly succeeded in thwarting it when he got Pope Innocent to issue a papal bull invalidating Magna Carta, and letters excommunicating those who would enforce it.
After Innocent’s bull, John probably felt he had killed Magna Carta, but then dysentery promptly killed him. And his son, Henry III, also constrained to parley by the cost of war, had to re-proclaim it – actually three times. Each time the re-proclamation contained modifications. Admittedly, those modifications effectively gutted the enforcement provisions that most bound the king (the panel of 25 barons, for instance). But the notion that the king was subject to the law and should act by “judgment” and not fiat was still there. And if that was still there, then the notion of separate governmental powers was bound to persist, regardless of what a curtailed Magna Carta left out. Because you can’t expect reliable adherence to the law and administer due process without separated powers.
In fact, the law of the land/due process/separation of powers complex was the only part that persisted. Because it was somewhat erroneously viewed as being the place where that complex began, Magna Carta had become the darling of legal scholars and theorists Coke and Blackstone, authors much read in 18th Century America. Among the American readers of that era were the framers of the U.S. and state constitutions, documents which all, in one way or another, structured governments in response to those notions.
Thus the unlikely evolution of Magna Carta concluded: it was transformed from a document without a name that had adjusted dozens of forgotten social frictions and tried to corral a spectacularly bad monarch into “Magna Carta,” theoretical foundation of our form of government; from a treaty among, by, and mainly for the benefit of the British ruling classes into an exemplar of justice for all. Magna Carta’s original contours had been worn away by the tides of time, leaving something surely as unforeseeable to its framers as those jets roaring into Heathrow.
I thought about this while attending a state bar meeting in Ocean City, a Maryland sandbar apparently doomed by rising sea levels. On that weekend just before Magna Carta’s 800th anniversary, I mused that everything around me that seemed so solid was bound to disappear. A century from now, lawyers will not likely be meeting there; no one will. And the actions we take as lawyers are mostly apt to be just as transitory; those few that last will probably do so in unexpected ways and for unexpected reasons, like the actions that produced Magna Carta. A humbling thought.
 My source for most of the facts referenced herein, including the jet glidepath (albeit that one point I confirmed independently), is David Carpenter’s utterly magisterial Magna Carta With a New Commentary (2015).
 For succinct summaries of the way 17th and 18th Century British legal scholars picked up Magna Carta and ran with it, straight into the arms of the framers of American constitutional documents, see A.E. Dick Howard, Magna Carta: Text and Commentary 25-30 (1998) and J. Podgers, America’s Magna Carta, 101 ABA Journal 36-45 (June 2015).
Copyright (c) Jack L. B. Gohn