An American Perspective: Magna Carta

Chapter 2- Law

§4. Magna Carta

In 1759, Sir William Blackstone wrote an analysis of the Magna Carta, which he titled, “The Great Charter and the Charter of the Forest”. One of the oldest and most revered charters of England is the Magna Carta, issued in 1215 A.D., on the fifteenth day of June, in the meadow of Runnymede134. Within the body of that document it decrees certain concessions and liberties granted, “to all freemen of our kingdom, for us and our heirs forever, all the underwritten liberties, to be had and held by them and their heirs, of us and our heirs forever135”, which includes the English Church to be free, protection of inheritance, limitations of power for wardship, sheriffs, bailiffs, foresters, warreners and constables, obtaining common counsel, rights of a widow, restrictions of land seizures, court jurisdiction, trial by juries for land forfeiture, free travel from and to the country, the right of recoupment, restriction of fines and imposts, the right of a freeman to have their court by restricting the writ of praecipe, and the security of the grand jury to petition for a redress of transgression, “if we, or our justiciar, or our bailiffs or any one of our officers, shall in anything be at fault towards anyone, or shall have broken any one of the articles of this peace or of this security” 136.

Abuses by King John caused a revolt by nobles who compelled him to execute this recognition of rights for both noblemen and ordinary Englishmen. It established the principle that no one, including the king or a lawmaker, is above the law. The Magna Carta was upheld by the Confirmatio Cartarum, in 1297 A.D., and was the basis for many of the structures of the American constitutions137, as well as arguing points as to the legal validity of a delegated congress of the people to assemble and petition to “his majesty” of Great Britain for a redress of grievances138.

“... our justices, sheriffs, mayors, and other ministers, which under us have the laws of our land to guide, shall allow the said charters pleaded before them in judgment in all their points, that is to wit, the Great Charter as the common law...”139

The inhabitants of the colonies saw that the only remedy to the abuses of Great Britain was handed down to them from the Magna Carta.

“We have often adjudged that the declaration in Magna Charta that the King would not pass upon any freeman, nor condemn him, 'but by the lawful judgment of his peers,' referred to a jury of twelve persons. It is not difficult to understand why the fathers entrenched the right of trial by jury in the supreme law of the land. They regarded the recognition and exercise of that right as vital to the protection of liberty against arbitrary power. Mr. Hallam in his Constitutional History of England, after observing that liberty had been the slow fruit of ages, said that as early as the reign of Henry VII, one of the essential checks upon royal power was that 'the fact of guilt or innocence on a criminal charge was determined in a public court, and in the county where the offense was alleged to have occurred, by a jury of twelve men, from whose unanimous verdict no appeal could be made.' And it is an interesting fact that the first ordinance adopted by the Plymouth colony in 1623 was one declaring, among other things, that 'all criminal facts' should be tried 'by the verdict of twelve honest men to be impaneled by authority, in form of a jury upon their oaths.' The value of that institution was recognized by the patriotic men of the revolutionary period when in the Declaration of Independence they complained that the King of Great Britain had deprived the people of the colonies in many cases of the benefits of trial by jury. Referring to the provisions of the Federal Constitution relating to the personal security of citizens of the United States, Kent says they 'must be regarded as fundamental in every state, for the colonies were parties to the national declaration of rights in 1774, in which the trial by jury, and the other rights and liberties of English subjects, were peremptorily claimed as their undoubted inheritance and birthright.'”140

By the course of the common law, publicly elected bodies of representatives were chosen by the people of each colony, assembling in Philadelphia, Pennsylvania, and forming a continental congress to review petitions and decide for the best course of redress141. In fact, it is the only way that a truly free people may lawfully conduct governmental affairs. Any other fashion outside of a publicly elected body of representatives chosen by the people, lacks consent and jurisdiction, and has as much binding affect in their legislation as Morocco’s laws have upon Germany.

“Where there is no jurisdiction, there can be no discretion, for discretion is incident to jurisdiction.”142

Quod meum est sine me auferri non potest.
What is mine cannot be taken away without my consent.143

[134 Magna Carta – The Great Charter (June 15th, 1215 A.D.) Preamble
135 Magna Carta – The Great Charter (June 15th, 1215 A.D.) Article 1
136 Magna Carta – The Great Charter (June 15th, 1215 A.D.) Article 61
137 Common Sense by Thomas Paine (February 14th, 1776) Page 17
138 Library of Congress - Journals of the Continental Congress (1774-1789) Vol. IV., January 1-June 4, 1776, pg. 144, 2nd chapter – Washington government printing office, 1906
139 Confirmatio Cartarum (November 5th, 1297 A.D.) (Source: Sources of Our Liberties, Edited by Richard L. Perry, American Bar Foundation)
140 Maxwell v. Dow, 176 U.S. 581, 610 (1900)
141 Library of Congress - Journals of the Continental Congress – (1774-1789) – Vol. IV., January 1-June 4, 1776, pg. 144, 2nd chapter – Washington government printing office, 1906
142 Piper v. Pearson, 2 Gray 120, cited in Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872)
143 A Law Dictionary, Adapted to the Constitution and Laws of the United States of America, and of the Several States of the American Union; With References to the Civil and Other systems of Foreign Law, to which is added Kelhams Dictionary of the Norman and Old French Language by John Bouvier (1856); pg. 153; see Jenk. Cent. Cas. 251. But see EMINENT DOMAIN ]