James W. Pfister: Magna Carta: Foundation of our law

As we move into the season of major Supreme Court decisions, it is appropriate to examine the foundation of our government under law: Magna Carta of 1215, A.D., and its later permutations. Magna Carta developed in the societal context of feudalism, with the king on top of a pyramid of barons dividing land and services among all people in the system. It was a system of property law. Out of strife in 1215 came the concept of due process found in the Fifth and 14th amendments of our Constitution, as well as other rights.

Under King Henry II, 1154-89, the common law developed to attempt to be “common” among the barons. The king would go village to village to hold court and develop a law based on factual patterns and precedent. During Henry’s reign, the Glanvill Treatise was written, which was a comprehensive summary of English law. Later, in the next century, on or about 1235, Henry Bracton wrote his comprehensive and detailed treatise of English law. Between these legal milestones, Magna Carta was written on June 15, 1215, revised in 1216, 1217, and 1225. It was entered into the official Statute of Rolls in 1297 by King Edward I.

The original Magna Carta represented the military success of the barons in the meadows of Runnymede, where King John was forced to accede to provisions he did not like. In particular, Articles 52 and 61, allowed for the creation of a board of 25 barons to have power over him. The Pope of Rome did not like this democratization either. After John’s death from dysentery in October 1216, Magna Carta was reissued minus the objectional provisions. But the concept of the king and high governmental officials being under law was retained along with the individual rights.

One English legal scholar has written: “…the provisions … which became permanent were those of a practical nature, while revolutionary machinery invented by the barons to supersede the Crown was quickly dropped as unworkable and contrary to the current English history.” (Theodore F. T. Plucknett, “A Concise History of the Common Law,” 2001).

Sir Edward Coke, legal advisor to royalty, and famous legal treatise writer of the 17th Century, promoted Magna Carta in his “Institutes of the Lawes of England” (1628-44). Coke famously quoted Henry Bracton and cited Magna Charta: that the king was under no man, but was under God and the Law, explaining that “his

Majesty was not learned in the Lawes of his Realm of England, and causes which concerne the life, or inheritance, or goods, or fortunes of his Subjects; they are not to be decided by natural reason, but by the artificiall reason and judgment of Law, which Law is an art which requires long study and experience…” (Coke, “Prohibitions del Roy Pamphlet,” 1658).

Of particular importance in Magna Carta is Due Process, fundamental fairness to the person. Article 39 (29 in later versions) states: “No free man shall be taken or imprisoned or disseized (land taken away) or outlawed or exiled or in any way ruined, nor will we go and send against him, except by the lawful judgment of his peers or by the law of the land.” This is very similar to the current Due Process Clauses of the Fifth and 14th Amendments: “…nor shall any person … be deprived of life, liberty, or property without due process of law.” The Fifth Amendment also states: “No person shall be held to answer for capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury.” Other substantive areas influencing our law were: legislative approval of taxation, freedom of religion, speedy trials, and the independence of the judiciary. (Sandra Day O’Connor, “The Majesty of the Law,” 2003). Magna Carta also provided easier access to court by the common man by providing that a court of common pleas will be held at a certain place.

Magna Carta is not a mere historic relic; it has found its way into over 100 Supreme Court decisions. The concept of government under law is the hope for a stable and just society and even for a peaceful world order: a “government of laws not of men.”

James W. Pfister, J.D. University of Toledo, Ph.D. University of Michigan (political science), retired after 46 years in the Political Science Department at Eastern Michigan University. He lives at Devils Lake and can be reached at jpfister@emich.edu.

This article originally appeared on The Daily Telegram: James W. Pfister: Magna Carta: Foundation of our law