Magna Carta — themes & analysis
Magna Carta is a feudal grievance document that became, over four centuries, the foundational text of the Anglo-American constitutional tradition. The distance between what it said in 1215 and what it was made to mean is the most important fact about it.
1 · A Feudal Grievance Document, Read in Its Time
the barons were not rebelling for liberty; they were rebelling for customs
The charter is, in its 1215 form, an unmistakably medieval document. Clause 2 fixes the relief — the inheritance fee — payable by a baron's heir at one hundred pounds, against the variable and often crushing sums John had been demanding. Clauses 3 through 8 regulate the king's rights over the wardship and marriage of underage heirs, the most lucrative and most abusable of feudal incidents. Clause 12 forbids the levying of scutage or aid except by the common counsel of the kingdom — a clause about the fiscal grievances of the wealthy, not a declaration of universal taxation principle. Clauses 9 through 11 deal with the rules for distraining a debtor for unpaid debts, including specific provisions for debts owed to Jewish creditors that have come to the crown by escheat.
Clauses 33 and 47 and 48 regulate fish weirs on the Thames and the conduct of the royal forests, the latter a perennial source of baronial grievance against royal hunting privileges. Read in this register the document is not philosophy. It is the settlement of a generation of complaints by men whose feudal customs had been violated and who were determined to have those customs put in writing where the king could not deny them.
This is the part of the charter that makes scholarly readers cautious. To call it a foundation document of liberty is to read back into 1215 a constitutional tradition that grew up around it later. The barons were not rebelling for the rights of free men in general; they were rebelling for the rights of barons. The clauses about freemen often mean specifically men who held land freely rather than as serfs, and the protections offered are protections within the medieval legal order, not against it.
Yet to leave the analysis there is to miss the document's other dimension. Built into the working out of those grievances are sentences that, however local their original target, articulate principles capable of being lifted out of their feudal context and made to do larger work — and that is exactly what later centuries would do with them.
Where to follow it: Clauses 2-12 (feudal incidents and taxation).
2 · Clauses 39 and 40 — Due Process
"by the lawful judgment of his peers or by the law of the land"
Clause 39 reads: nullus liber homo capiatur, vel imprisonetur, aut disseisietur, aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum vel per legem terre. No free man shall be taken or imprisoned or disseised or outlawed or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land. Clause 40 reads: nulli vendemus, nulli negabimus aut differemus rectum aut justitiam. To no one will we sell, to no one will we deny or delay right or justice.
The principles are old. Roman law had something like them. The customary law of the Anglo-Saxon and Norman kingdoms had something like them. The radical move in 1215 is to write them down and have them sealed by the king as binding obligations on his own conduct. The phrases per legale judicium parium suorum (by lawful judgment of his peers) and per legem terrae (by the law of the land) became, in the hands of later commentators, the textual seed for two of the central doctrines of Anglo-American legal thought: trial by jury and due process of law.
The 1354 statute of Edward III is the first place the Latin lex terrae is glossed by the English phrase due process of law, and from that gloss the doctrine carried straight into the Fifth Amendment. The fourteenth-century reading already assumes what the 1215 charter never quite said — that liber homo means free man in the broad sense and not a member of the feudal upper classes — and the broader reading is what makes the clauses the universal sentences they have become.
Read in 2026 the two clauses look unremarkable. Read against the centuries in which kings could imprison and outlaw and confiscate at their pleasure, and against the political and legal struggles by which the principle they articulate was made operative, they are the two short sentences from which a great deal of subsequent constitutional history has descended.
Where to follow it: Clauses 39 and 40 (the due-process clauses).
3 · The Security Clause
"they may distrain and harass us by every means in their power"
Clause 61 establishes a council of twenty-five barons, chosen by the rebels themselves, with the standing power to receive complaints of any violation of the charter by the king or his officers, to compel redress within forty days, and, if redress is refused, to make war upon the king together with all the commons of the land. They may distrain and harass us by every means in their power — by seizing castles, lands, and possessions and any other way they can — until they obtain redress, saving only our person and the persons of our queen and children. The king is sworn to compel any of his subjects who refuse to support the twenty-five in this enforcement.
The clause is, in effect, a legal warrant for armed rebellion against the very king who is sealing it, exercisable on the say-so of a self-perpetuating baronial committee. It is a measure of how badly the political relationship between John and his barons had broken down by June 1215 that the barons did not believe the rest of the charter was worth anything without an enforcement mechanism that allowed them to fight him again on the basis of any future violation.
The pope's August annulment seized on the security clause as the most outrageous feature of the whole document — a king cannot be made subject to his own subjects in this way, and any oath sworn under such conditions is invalid. Innocent III was, on the medieval theory of kingship, almost certainly right. The reissues of 1216, 1217, and 1225 all dropped clause 61. What survived was the principle, much diluted, that the king's authority is conditional on his observance of the law.
Reading clause 61 now is reading the most radical sentence the medieval English constitution ever contained, and reading the reason that sentence had to be quietly removed before the rest of the charter could become respectable.
Where to follow it: Clause 61 (the security clause).
4 · The Coke Revival
"Magna Carta is such a fellow that he will have no sovereign"
Magna Carta as a working political document fades through the late middle ages. Confirmed by every English king at coronation, cited by the Lords against Edward II and against Richard II, used in occasional cases by lawyers as authority on procedural points, it is a respected old document gradually losing relevance as the institutions of common law and parliament grow up around it and supersede most of its specific provisions.
The transformation is the work of Sir Edward Coke, lawyer, judge, parliamentarian, and the most learned figure in the early-seventeenth-century English legal world. Coke was Chief Justice of Common Pleas from 1606 and Chief Justice of King's Bench from 1613, dismissed by James I for taking too independent a line in conflicts between the common-law courts and the royal prerogative. In opposition, in his Institutes of the Laws of England — the second volume of which is a clause-by-clause commentary on Magna Carta — Coke read the 1215 document not as the feudal settlement it largely was but as the founding charter of English liberties against royal absolutism.
He read clauses 39 and 40 as guarantees of jury trial and due process for every Englishman; he read clause 12 as a precedent for parliamentary control of taxation; he drafted the Petition of Right of 1628 against Charles I's forced loans and arbitrary imprisonments, building the document explicitly on Magna Carta clauses 39 and 40 as he had taught the legal profession to read them.
The reinterpretation was not dishonest; it was the working out, over centuries, of principles the original had stated more narrowly than the later application required. But it is worth remembering that the Magna Carta of constitutional myth — universal, foundational, the guarantee of due process and the rule of law — is largely Coke's Magna Carta, and that the document sealed at Runnymede in 1215 was a much more limited thing than the document Coke and his successors taught us to read.
Where to follow it: Clauses 12, 39-40 (the clauses Coke deployed).
5 · The American Inheritance
from Runnymede to the Fifth Amendment
By the time the English colonies in North America were being chartered in the seventeenth century, Coke's Magna Carta was standard authority in the legal training of every educated English lawyer, and that authority crossed the Atlantic with the colonial charters. The Virginia Charter of 1606 promised the colonists all the liberties, franchises, and immunities of free denizens of England — which, in the Cokean reading, meant all the rights guaranteed by Magna Carta.
The Massachusetts Body of Liberties of 1641 paraphrased clauses 39 and 40 as the guarantee that no man's life shall be taken away, no man's honour or good name shall be stained, no man's person shall be arrested, restrained, banished, dismembered, nor any way punished — except by virtue or equity of some express law of the country warranting the same. Pennsylvania's Frame of Government, Maryland's Toleration Act, the New York colonial constitution all show the same pattern.
By the time of the imperial crisis of the 1760s and 1770s, the colonists were arguing against parliamentary taxation by direct appeal to Magna Carta and the principles Coke had read into it. The Declaration of Independence of 1776 names a string of grievances against George III that read, in many places, like clause-by-clause complaints under Coke's Magna Carta.
The Fifth Amendment to the United States Constitution of 1791 — no person shall be deprived of life, liberty, or property without due process of law — is, in legal substance, clause 39 of the 1215 charter as Coke had taught the English lawyers to read it. The Fourteenth Amendment of 1868 extends the same principle to the states. The American constitutional tradition is, at one of its load-bearing points, a transatlantic prolongation of the document the rebel barons forced on King John eight hundred years ago.
Where to follow it: Clauses 39-40 (the clauses that crossed the Atlantic).