Magna Carta

“ If, therefore, the constitutional authority of Magna Carta had rested solely upon the compact of John with his people, that authority would have been entitled to stand forever as the supreme law of the land, unless revoked by the will of the people themselves. ”

“ Our ancestors' ancestors had known the tyranny of the kings and the rule of man and it was, in my view, in order to insure against such actions that the Founders wrote into our own Magna Carta the fundamental principle of the rule of law, as expressed in the historically meaningful phrase 'due process of law.' The many decisions of this Court that have found in that phrase a blanket authority to govern the country according to the views of at least five members of this institution have ignored the essential meaning of the very words they invoke. ”

“ The element of sentiment in politics can never be ignored.
It is no disparagement to Magna Carta, then, to confess that part of its power has been read into it by later generations, and lies in the halo, almost of romance, which has gradually gathered round it in the course of centuries. It became a battle cry for future ages, a banner, a rallying point, a stimulus to the imagination. ”

“ There is scarcely one great principle of the English constitution of the present day, or indeed of any constitution in any day, calculated to secure national liberties, or otherwise to win the esteem of mankind, which has not been read by commentators into the provisions of Magna Carta. ”

“ The greater part of England's history is our history; her Magna Carta is our Magna Carta, and the immortal deeds of valor of the English, Scotch, Irish and Welsh are our heritage and the source of our inspiration. Our hearts, therefore, cannot but beat faster day after day as we read of the splendid heroism and noble self-sacrifice of your great race. ”

“ The most famous of all the chapters of Magna Carta and the most important and far-reaching from a juridical point of view is undoubtedly the thirty-ninth, which provides that "no freeman shall be taken or imprisoned or disseised 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." ”

“ The importance of the Great Charter, originally flowing both from the intrinsic and from the extrinsic features already described, has greatly increased, as traditions, associations, and aspirations have clustered more thickly round it. These have augmented in each succeeding age the reverence in which it has been held, and have made ever more secure its hold upon the popular imagination.
Thus Magna Carta, in addition to its legal value, has a political value of an equally emphatic kind. ”

“ It is the corner stone, the last development after many battles, the crystallization of all that has ebbed and flowed during long constitutional struggles. A constitution, for instance, can not lie; a treaty can not give a garbled view of a transaction—it is the letter of the law. And how much do such documents tell us! Is not the Magna Carta at once a summary of all the wrongs of all the men of England, and a record of the remedies applied? Can the inner life lived for centuries in monasteries possibly be understood without reading the Rule of Benedict? ”

“ If the control of taxation by a national assembly, if the conception of representation, if the indissoluble connection of these two principles with each other, ever really found a place in Magna Carta, they were contemptuously ejected from it in 1216, and failed to find a champion in 1217 to demand their restoration.
A modern statesman, with any knowledge of the value of constitutional principles, would have gladly seized the occasion of the revision of the terms of the Charter, to assert and define the functions and rights of the Great Council with precision and with emphasis. ”

“ It is, indeed, no exaggeration to assert that Magna Carta marked the greatest political epoch in the history of our race, in that it saved England from becoming one of the arbitrary and degrading despotisms which arose in Europe after the overthrow of the feudal system, and that from its principles sprang representative and constitutional government, with all that these terms have grown to mean to Americans. ”

“ It may be conceded that the framers of Magna Carta builded better than they knew, and likewise that many of the traditions as to the intent, meaning and scope of its provisions—traditions which were so potent and inspiring during the seventeenth and eighteenth centuries—were founded, as is now asserted, upon legends and myths. Yet, these legends and traditions, growing up and clustering around Magna Carta, served to keep alive and perpetuate its spirit. ”

“ This was what the barons meant by their famous demand in Magna Carta that every man should be judged by his peers; they insisted that the royal judges were not their peers, but only servants of the crown, and their demands in these respects were reactionary proposals which might have been fatal to liberty as we conceive it. ”

“ IV. Magna Carta: an Estimate of its Value. No evidence survives to show that the men of John’s reign placed any excessive or exaggerated importance on the Great Charter; but, without a break since then, the estimate of its worth steadily increased until it came to be regarded almost as a fetish among English lawyers and historians. No estimate of its value can be too high, and no words too emphatic or glowing to satisfy its votaries. ”

“ The framers knew that it was in the courts that the king of England would keep his promises, if at all, and that the king's government would only be as good as his judges were learned, independent and impartial. In these provisions of Magna Carta we find the principle of the separation and independence of the judicial power and the soundest and highest conceptions of the administration of justice, conceptions far in advance of those to be found in any other document or enactment of that age. ”

“ But statesmen and lawyers, in dealing with the practical problems of constitutional government, will not minimize the value of Magna Carta, and our debt to the generation that forced it from King John, merely because the underlying principles may not have been fully grasped by its framers and its traditions may be based on legends and myths. ”

“ There are two further reasons why we cannot be content with an explanation which dismisses Magna Carta with the bald statement that its provisions are merely of a declaratory nature. History has proved the universal truth of the theory that a purely declaratory enactment is impossible; since the mere lapse of time, by producing an altered historical context, necessarily changes the purport of any Statute when re-enacted in a later age. ”

“ On the other hand, it may be argued that Magna Carta, while something less than a law, is also something more. A law made by the king in one national assembly might be repealed by the king in another; whereas the Great Charter was intended by the barons to be unchangeable. ”

“ As Magna Carta was rarely absent from the minds of subsequent opponents of despotism, a practical 145and legal direction was thus given to the efforts of Englishmen in many ages. [221] Therein lies another English characteristic. While democratic enthusiasts in France and America have often sought to found their rights and liberties on a lofty but unstable basis of philosophical theory embodied in Declarations of Rights ”

“ Magna Carta repeats this concession in more general 452terms, substituting “freemen” for the “barons” of the writ—an alteration which necessitated the omission from the charter of the concluding words of the writ, “in curia nostra”; because the peers of freemen, other than barons, would be found, not among the barons in the king’s court, but among the freeholders in the court baron. ”

“ The spirit of Magna Carta, as it thus survived, has for centuries inspired Englishmen and Americans, even though its letter may be dead and most of its provisions may long ago have become obsolete and their exact meaning hidden beneath the ruins of the past. Indeed, provisions of the Great Charter were frequently violated by king and parliament after 1215, and were allowed to fall into neglect for generations at a time ”

“ Magna Carta was not a statement of principles, but a series of specific remedies for specific abuses, which may be summarized as follows:
1. The Church to be free from royal interference, especially in the election of bishops. 2. No taxes except the regular feudal dues (S150) to be levied, except by the consent of the Great Council, or Parliament. 3. The Court of Common Pleas (see p. 73, not 1) not to follow the King, but to remain stationary at Westminster. Justice to be neither sold, denied or delayed. ”

“ Further details are given by Blackstone, Great Charter, lii.; Thomson, Magna Charta, 437–446; and in Bémont, Chartes, pp. xxx. to liii.
II. Magna Carta and the Reforms of Edward I. The Great Charter, alike from its excellences and from its defects, exercised a potent influence on the trend of events throughout the two succeeding reigns. It is hardly too much to say that the failure of Magna Carta to provide adequate machinery for its own enforcement is responsible for the spirit of unrest and for the protracted struggles and civil war which made up the troubled reign of Henry III. ”

“ The two questions that follow, being indirect questions, should be given falling inflections.
[p. 394] The sixth paragraph represents a masterly arrangement of concluding series. The first series enumerates three great charters: Magna Carta, the Declaration of Independence, and the Emancipation Proclamation; the second, three instances where the people struggled against oppression: the storming of the Bastille, the battle of Bunker Hill, and the suffering of the American army at Valley Forge ”

“ At least since Magna Carta people have desired to have a system of courts with set rules of procedure of their own and with certain institutional assurances of fair and unbiased resolution of controversies. ”

“ The numerous factors which contributed towards the worth of Magna Carta may be distinguished as of two kinds, intrinsic and extrinsic. (1) Its intrinsic value depends on the nature of its own provisions. The reforms demanded by the barons and granted by this Charter were just and moderate. The avoidance of all extremes tended towards a permanent settlement, since moderation both gains and keeps adherents. ”

“ If the bulk of the English peasantry were protected at all by Magna Carta that was merely because they formed valuable assets of their lords. The Charter viewed them as "villeins regardant"—as chattels attached to a manor, not as members of an English commonwealth. ”

“ Thousands of men, at various times in history, gave their lives in order that these rights might be established. If you were writing a history of civil liberty among English-speaking people, you would have to go back at least seven hundred years to the days of Magna Carta, when King John of England was forced to surrender in that famous document many of the arbitrary powers which he had claimed the right to exercise. ”

“ The compelling logic of events forces a way for its own fulfilment, independent of the caprices, aims and ambitions of individual men. The incidents of John’s career are the occasions, not the causes, of the great national movement which laid the foundations of English liberties. The origin of Magna Carta lies too deep to be determined by any purely contingent or accidental phenomena. ”

“ So far from the words of Magna Carta showing any desire to confirm this precedent, they show a deliberate intention to ignore it, and to fall back on the more ancient practice. The members of the assembly which Magna Carta stipulated should be convened for the taking of “the common consent” 298were all of one type, drawn from the same section of the land-owning aristocracy, namely, military tenants-in-chief of the Crown. The barons, great and small, might be present, each man for himself ”

“ The Magna Carta, greatest of all historical charters wrung from the various kings of England from Henry I downward, was granted by King John at the pressing instance of the Barons and Commons of England toward the end of his ill-judged and unfortunate reign. Of this Document, celebrated and historic as it is, but little is known at large. Although Blackstone and other prominent lawyers have written upon it, information about it is hard to obtain. No reproduction of the original Document has ever been offered to American collectors. ”

“ To each class a double interest attaches, since the resentment aroused by both formed so vital an element in the spread of that spirit of determined resistance to King John, which led to the winning of Magna Carta, and since, further, an intimate knowledge 61of the exact nature of these grievances throws a flood of light on many otherwise obscure clauses of the Great Charter, and enables us to estimate how far the promised remedies were ultimately carried into practice in later reigns. ”

“ The famous clause of Magna Carta (§ 39) prohibiting sentences of exile, except as the result of a lawful trial, refers more particularly to his case. He was one of the twenty-five appointed to enforce the promises of Magna Carta; and his aggressive attitude was one of the causes which contributed to the recrudescence of civil war (1215) . ”

“ They generated the sentiment which impelled men to patriotic and heroic sacrifice in the cause of liberty; they sustained generation after generation in the recurring struggles for political [Pg 5] justice and equality before the law; they formed and preserved a public morality which prevented violations of the principles of the Great Charter, and they were of incalculable inspiration and encouragement to Englishmen and Americans, if not to the whole world. The great traditions of Magna Carta have made its heritage peculiarly valuable and its service to humanity immortal. ”