Thirteenth Century Revolutionaries: Magna Carta and Beyond

May/June 2015

By Jay Donald Jerde, Esquire

We remember Magna Carta as an early, shining beacon of justice that led to a better world. It was not the only progress of those times toward rule under law. Those lesser lights grew indistinct in later centuries, but they, too, lit the way.

The Barons at Runnymede wanted only the customary Rights of Englishmen. At his coronation, King John-unlike his predecessors-had failed to announce certain common rights. He then proceeded to rule with lawless freedom. Those common rights are what comprise Magna Carta, much as the American Declaration of Independence lists the wrongs of a later British government.

The correction of King John's misrule required use of juries. He failed in due process, as Magna Carta Chapter 39 demands in ways comparable to modern constitutional criminal procedure and takings protections. Chapter 40 is an eternal paean to fairness: "To no one will We sell, to none we Will deny or delay, right or justice."
Some scholars like to point out that Magna Carta addressed only medieval law. That argument, while literally true, fails to interpret the document's intent. Magna Carta reversed government intrusion by reverting to ancient customs, previous fee schedules, prior granted rights, and reduction of the scope of the onerous royal forests and their laws. In all these statements of archaic law, Magna Carta addressed one crucial problem, for the barons and for us today: the protection of individual rights.

Change was in the air in the 13th century. The barons were not the only ones unhappy with the current law.

At the time of Magna Carta, trial by ordeal commonly provided admissible evidence. Ordeal involved tests of fire or water. The defendant may have had to carry hot metal. Maybe he would be blindfolded and have to avoid red-hot plowshares. He may have been forced to plunge his hand into boiling water. Maybe he'd be flung into a pond to see if he floated or sank. If he floated, he was guilty. Perhaps the case opened with oaths, followed with witnesses, and then involved the ordeal. Additional proofs may have been proffered, but ordeal formed the most conspicuous element. Commonly used, ordeal was the required mode of trial for larger crimes under King Henry II.

Progressive and humane people were beginning to criticize these forms of proof as irrational. Pope Innocent III agreed with these concerns in calling the Fourth Lateran Council, which met in Rome in November 1215. In prohibiting clergy from participating in a sentence involving the shedding of blood, the Council's Decree 18 also removed clergy from "confer[ring] a rite or blessing or consecration on a purgation by ordeal of boiling or cold water or of the red-hot iron." Laymen could still do such things, or perform trial by combat or duels.

The Roman Catholic Church then was the most powerful international organization in Western Europe. The decree carried more weight than the literal words.

In England, which even then had a stormy relationship with the Vatican, the Council's Decree 18 stopped trial by ordeal. New writs in 1218-19 from King Henry III to the courts halted future ordeals. English juries from then on decided the issues, as they occasionally had reversed the results of the ordeal previously. Courts began to rely more on evidence that appears more modern and rational.

Other progressive legal trends were blossoming in places like the University of Paris in the era of St. Thomas Aquinas. Academics considered a new world of limited powers under the rule of law. An English judge known to us as Henry de Bracton brought those ideas back to England.

In the 1250s, Bracton wrote a treatise on English law that comprises four volumes. It was a popular work. Dozens of surviving manuscripts allow an accurate reconstruction of Bracton's original words. His analysis of English law emphasized-in three places-that the king held power only under the law. "The king must not be under man but under God and under the law, because law makes the king." In another place, "Nothing is more fitting for a sovereign than to live by the laws, nor is there any greater sovereignty than to govern according to law, and he ought properly to yield to the law what the law has bestowed upon him, for the law makes him king."

Some say that Chapter 39 inspired Bracton's pronouncement. It also fit into changes then evolving. For the first time in centuries, Europe at the end of the 1200s, said William Stubbs in his Constitutional History of England, "witnessed the greatest inroad of written law upon custom and tradition."

Whenever the people of England had reason to complain about their king, they invoked Magna Carta and Bracton's ideals. Most notably, Parliament declared Magna Carta before King Charles I. The English Bill of Rights that settled the Glorious Revolution of 1688 descended from both law and ideals in placing constitutional limits on royal power. Sir William Blackstone spent two pages documenting Magna Carta's progeny, including Sir Edward Coke's prior enumeration of dozens of statutes.

The English in America followed an intellectual path similar to English Parliamentarians. The Glorious Revolution played out in places like Ipswich, Massachusetts, where citizens refused to pay royal taxes enacted without their consent. To no avail, they "pled Magna Carta." The Colonists brought Coke with them to America and invoked it for Revolutionary causes. They read their ship-borne copies of Blackstone. All they wanted in the 1760s and 1770s were the Rights of Englishmen. The words of liberty in Magna Carta and Bracton infused American law far more powerfully than they did in England.

Constitutional law flourishes in brief periods. National crises call upon revolutionary change. In thirteen years, the American Colonies went from an elegant Declaration of Independence to adopting a durable single charter of government in the Constitution of 1787. In a five-year period, Americans put in the Constitution the Reconstruction Amendments that eliminated slavery, enfranchised African-Americans, and established federal due process to contain state infringements of rights. The Progressive Era amendments, including income tax, direct election of U.S. Senators, and women's suffrage, took less than eight years. The 1960s saw Civil Rights enforced effectively against powerful local opposition. These are historic growth spurts that extended liberties in the name of justice.

The legal scholars, clerics, and barons of the 13th century enacted a similar spate of liberty. That it was among the earliest makes it remarkable. That it faced a less civilized, more autocratic, and more violent world makes the effort more heroic. We remain amazed that in a harsh time, liberties grew.

Jay Donald Jerde, Esquire is an attorney in Madison, Wisconsin, and a member of the James E. Doyle AIC.

© 2015 JAY DONALD JERDE, ESQ. This article was originally published in the May/June 2015 issue of The Bencher, the flagship magazine of the American Inns of Court. This article, in full or in part, may not be copied, reprinted, distributed, or stored electronically in any form without the express written consent of the American Inns of Court.