Magna Carta
Dan Klerman
USC Law School
Space and Missile Systems Center
Los Angeles Air Force Base
May 6, 2015
Structure
• Background
–Feudalism
–Common Law
–Reign of King John
• Magna Carta in 1215
• Magna Carta, Lord Coke, and Stuart Kings
• Magna Carta and the American
Revolution
• Magna Carta and Other Rights
Feudalism I
• Feudalism was a society ruled by a military elite (nobility) of lords and
vassals, in which a vassal received land (fief or fee) from his lord in
return for military service to his lord.
• King was at apex of feudal pyramid
King
Tenant in Chief 1
Tenant in Chief 2
Tenant in Chief 3
Vassal 1 Vassal2 Vassal 3
Vassal 1 Vassal2 Vassal 3 Vassal 4
Vassal 1 Vassal2 Vassal 3
Vassal 1 Vassal2
Vassal1Vassal 2
Vassal 1Vassal 2 Vassal 3 Vassal 4
•Any number of vassals possible
•Most member of military elite were both lords and vassals
Feudalism II
• Principal Rights and obligations
– Vassal owed lord military service,
• Fixed number of knights (mounted horsemen)
• Usually limited to 40 days per year
• Scutage was monetary payment in lieu of military service
– Aids
• Vassal was obligated to provide financial assistance (aids) to
lord when needed, such as when lord’s eldest son was
knighted, when lord’s eldest daughter married, or to ransom
the lord if he was taken captive.
– Relief
• In theory, upon death of vassal, lord could choose new vassal
– Strong pressure, however, to choose dead vassal’s son or
other heir
• Heir of vassal was obligated to pay money (relief) to inherit and
take possession of fief, and thus become vassal.
– Most obligations not precisely defined before 13th century
Feudalism III
• Feudalism and Law
– Each lord had a court for resolution of disputes between his
vassals, and between the lord and his vassal
• Vassals collectively were the judges
• Vassals were “peers” of other vassals
– Court could deprive vassal of fief, if vassal failed in his obligations
– Vassals were relieved of their obligations, if their lord failed in his
obligations or if he demanded more than he was owed
– Lord was also supposed to consult his vassals in making important
decisions
– Procedure in feudal court was not clear
• Probably mostly trial by battle, oath
• Jury trial was probably infrequent, if known at all
• Feudalism and Manorialism
– Feudalism only describes relationships among military elite
• Perhaps 5% of population
– Land actually farmed by peasants
• Often, but not necessarily organized in manors
• Each manor had own court – property, contract, tort, etc.
Feudalism IV
• King had rights by virtue of fact that he had vassals
– His vassals were “tenants in chief” or “barons”
– His rights were similar to those of any feudal lord
• E.g. military service of his tenants in chief, scutage, aids, relief
– Like any lord, he was supposed to consult his vassals
about major decisions
– Like any lord, he had a court for resolution of disputes
between his vassals
• King also had rights and responsibilities as king
– Courts to resolve disputes even among those not his
vassals
– Some additional rights of taxation
• E.g. import & export taxes
Common Law
• Most law before the 13th century was local
– Law of particular region, feudal court, manor
• Starting in 12th Century, King Henry II started to expand royal
jurisdiction
– Sent judges to countryside every few years to hear criminal cases
• Trial by battle or ordeal
– Established new remedies for property disputes, even among
those not his direct vassals
• Trial by jury
– Established courts in Westminster to hear contract disputes
• Trial by oath
– These new remedies would later be known as “common law”
• Or “the law of the land”
King John
• 4th son of Henry II
• Inherited large empire in 1199
King John & Phillipe Augustus
King John
• King John needed money to fight the war
• He raised money in whatever ways he could
• 13th century England was a thoroughly feudal country, so most of the
ways he raised money involved manipulation of feudal obligations
– High and frequent scutages
– High and frequent aids
– High reliefs
• In 1214, at the Battle of Bouvines, John lost nearly all his territories in
France
– Which meant that all the money he had raised had essentially
been wasted
• In 1215, the barons revolted
Magna Carta
• Magna Carta was a sort of peace treaty
between the barons and the king
• The barons agreed to be loyal to
King John
• King John agreed not to do the
sort of things that had angered
the barons
• 63 provisions
Magna Carta Ch. 1
• In the first place [we] have granted to God and by
this our present Charter have confirmed, for us and
our heirs in perpetuity, that the English church shall
be free, and shall have its rights undiminished and
its liberties unimpaired [including] freedom of
elections, which is thought to be of the greatest
necessity and importance to the English church….
Magna Carta Ch. 2
• If any of our earls or barons, or others holding of us
in chief by knight service shall die, and at his death
his heir be of full age and owe relief, he shall have
his inheritance on the payment of the ancient relief,
namely the heir or heirs of an earl £100….
Magna Carta Ch. 12 & 14
• No scutage or aid is to be levied in our realm except by
the common counsel of our realm, unless it is for the
ransom of our person, the knighting of our eldest son
or the first marriage of our eldest daughter; and for
these only a reasonable aid is to be levied.
• And to obtain the common counsel of the realm for the
assessment of an aid (except in the three cases
aforesaid) or a scutage, we will have archbishops,
abbots, earls and greater barons summoned
individually by our letters and we shall also have
summoned generally through our sheriffs and bailiffs
all those who hold of us in chief….
Magna Carta Ch. 20
• A free man shall not be amerced for a trivial
offense, except in accordance with the degree of
the offense; and for a serious offense he shall be
amerced according to its gravity
Magna Carta Ch. 39 & 40
• No free man shall be taken or imprisoned or
disseised or outlawed or exiled or in any way
ruined, nor will we go or send against him, except
by lawful judgment of his peers or by the law of the
land.
• To no one will we sell, to no one will we deny or
delay right or justice
Magna Carta Ch. 61
• …. we give and grant the following security: namely,
that the barons shall choose any twenty-five barons
of the realm they wish…. If we or our justiciar or
our bailiffs or any of our servants …. transgress any
of the articles…. and if we …. do not have it
redressed within forty days … the aforesaid barons
shall distrain and distress us in every way they can,
namely by seizing castles, lands and possessions, in
in such other ways as they can, saving our person
and those of our queen and our children, until in
their judgment amends have been made….
Immediate Aftermath
• King John never intended to obey Magna Carta
– Had Pope annul it
– Civil war resumed
– King John died soon thereafter of dysentery
• So in short run, Magna Carta was
– Attempted remedy to specific abuses of one medieval
king
– Failure in preventing civil war
– Swiftly annulled and thus lacking in legal effect
Magna Carta in Middle Ages
• Henry III reissued Magna Carta in 1216, 1217, and
1225
– As good will gesture
– But deleting chapters he didn’t like
• Ch. 12 & 14. No scutage or aid without common counsel of
realm
• Ch. 61. Right of 25 barons to wage war against king to enforce
compliance
• Judges sometimes enforced Magna Carta in court
– Jury of knights
– No prosecution by women except death of husband
Other Medieval Developments
• Trial by Jury
– Criminal cases starting in 1218 in response to 4th Lateran
Counsel
– Civil cases through creation and expansion of trespass
writ starting in mid-13th century
• Parliament
– Claimed right to approve taxes generally
– Starting in late 13th century commoners were
summoned
• Evolved into House of Commons
• Feudal obligations became less important
– General taxes became more important
Magna Carta in
th
17
Century
• Stuarts claimed to rule by Divine Right and that not
bound by law or custom
– Could raise taxes as pleased without Parliament
– Could adjudicate disputes in procedures beyond
common law
– In particular, without jury
• One of the most prominent opponents of the
Stuarts was Edward Coke
– At various times AG, Chief Justice of England, and MP
Edward Coke
King James I
Edward Coke & Magna Carta
• Coke argued that Magna Carta was historical precedent for idea
that there were restraint’s on royal power
– MC Ch. 12. “No scutage or aid shall be levied in our realm
except by the common counsel of our realm”
• Coke generalized “scutage or aid” to mean any taxes
• Interpreted “common counsel of the realm” to mean
Parliament
– MC Ch 39. No imprisonment or forfeiture except by
judgment of peers or law of land
• Coke interpreted that to require jury trial
• Coke was terrible historian
– But historical errors can produce good results &
constitutional improvements
Magna Carta & American Revolution
• Coke’s invocations of Magna Carta were echoed by
American Colonists in revolutionary period
– Ch 12, “No scutage or aid ... shall be levied … except by
common counsel of realm”
• Was cited historical authority for “no taxation without
representation”
– Ch 39. “No imprisonment or forfeiture except by
judgment of peers or law of land”
• Became critique of admiralty courts, which operated without
juries
• Eventually became 5th Amendment, “No deprivation of life,
liberty or property without due process of law.”
Limits of Magna Carta
• Does not include most rights we cherish
– Freedom of speech or religion
– Equal protection of law
– Other rights arose of later social and political struggles
• Not entrenched
– Annuled in 1216
– Revised by Henry III without consent
– Most provisions later repealed by Parliament
Long History of Magna Carta
• Originally mostly charter of good feudal customs
– NOT individual rights
• But became interpreted as charter of individual rights
– And indeed helped foster the development of individual
rights
– Also fostered idea of limited government
• Rule of law
• But, of course, development of rights and rule of law
also reflect other historical struggles
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Parliament versus Stuart Kings
American colonies versus Britain
Civil War
Civil Rights movement
Gay rights movement