Magna Carta: Its Evolution, Impact and Continuing Relevance

In the first week of January 2012, members of the New

Hampshire GOP attempted to pass House Bill 1580. Republicans Bob

Kingsbury, Lucien Vita and Tim Twonbly sought the requirement of

“a reference to Magna Carta on certain legislation” concerning

“individual rights or liberties”.1 Despite the admirable attempt

to reconnect the past while commemorating the charter’s eight

century anniversary , legislatures and historians alike find such

a prerequisite inefficient and irrelevant, as many of the 63

articles within the charter deal with such problems as the

returning of Welsh prisoners, as well as dealing with posthumous

loans owed to Jews. Vita himself admitted to not being entirely

familiar with Magna Carta himself, while Democratic spokesman Ray

Buckley appreciated the effort the GOP members put into the

effort “to make them look like extremists”.

As Kingsbury pointed out, “Everything has an analog,

everything has an origin, and this is part of the origin of what

we have in our country”. Many contemporary American rights and

1 Monitor Staff, “Eight Hundred Years Later, an Inspiration,” The Concord Monitor (December 2012) http://constitution.org/eng/magnacar.htm

privileges stem from much older statutes. Thomas Jefferson’s drew

the eternal phrase from the Declaration of Independence

concerning the evident truths of “life, liberty, and the pursuit

of happiness” from John Locke’s “life, liberty, and property”.2

Jefferson, Locke, and David Hume, all three commentators of the

Enlightenment period, built upon the reforms and revolutions of

the 16th and 17th centuries, which in turn found their origins in

the rebellions of the 13th and 14th centuries that sought

established limits of monarchial power over its subjects. The

achievements of these medieval conflicts, which concerned the

limitation of monarchial authority over the people, served as the

foundations for the natural rights of men that rebels and

philosophers made their rallying cry for the next eight

centuries.

This tradition of reform, revolution and policy making finds

its origins in the signing and sealing of a charter at Runnymede

in 1215. Like the documents that followed it, the charter was

preceded by the abuse of personal liberties and property by the

central authority against its subjects, which had resulted in

2John Locke, Edward J. Harpham, John Locke’s Two Treatises of Government: New Interpretations(Lawrence: University Press of Kansas, 1992), 175.

armed conflict. Bloodshed would likewise follow before the

document would be accepted, ratified and held as the law of the

land. Magna Carta set the standard for defining personal rights,

liberties and properties, and it has taken new forms over the

centuries. These later adaptations remained true to the nature

and intentions of the original charter, but each addressed

contemporary issues as they developed. The fundamental elements

of Magna Carta and its descendants thus offer guidelines for

policy making as well as a permanent standard for current social

and political policy to uphold.

Understanding the role and relevance of Magna Carta means

tracing its origins back farther than normal policy research,

even farther than 1215. Historians traditionally trace modern

English policy to the Conquest of 1066, when William of Normandy

installed an Anglo-Norman manorial kingship, and in doing so

established a new social, legal and economic structure. The

majority of the population became tied to the land of the Norman

nobility, working the land in exchange for shelter while the

nobles paid scutage and military service for land and title from

the monarchy. Each noble had a demesne which provided exclusively

for his household, while the peasant majority would rely on the

resources of an allotted area known as the commons for personal

sustenance.3 Along with scutage and other forms of taxation,

afforestation allowed the monarchy to mark designated lands and

the natural resources within them as exclusive royal forests.

Access land and the resources depended upon the law.

For the next two hundred years, English and Norman policy

remained invariably conjoined, requiring the monarchy to develop

governing policies for maintaining order on either side of the

Channel. In order to ensure civil stability, the English kings

relied on the regional nobility and the local customs to maintain

the status quo when the king was elsewhere. To that end, Henry II

institutionalized common law in 1154,4 which elevated local

customs to be recognized by the royal courts as well as newly

established juries. As military service played a crucial role in

the king’s relationship with his nobles, Henry also conducted

military campaigns in France, Wales and Ireland in order to prove

his abilities as a military leader while justifying royal demands

of scutage and military service. His successor Richard I took this

3 Katherine Drew and Jane Chance, Magna Carta, Greenwood Press (2004), 22.4 Drew, 30.

latter policy to the extreme. Though his famous crusade and wars

in France meant heavy taxation, his military achievements won

both social and ecclesiastic prestige, and his campaigns to

defend his holdings in Normandy kept the Norman based nobility

staunchly loyal. His campaigns, though forever marking him as a

king in absentia, nonetheless preserved the political and legal

systems his father had established.5

This changed when Henry’s youngest son John assumed the

throne in 1199. Lacking the military prowess of his predecessors,

John suffered subsequent defeats that lost him control over

Normandy and Anjou in 1204. Along with the immediate lack of

manorial revenue from these regions, these losses prompted both

John and the Anglo-Norman barons to adjust their political and

economic foci, as their primary interests became limited to their

English holdings.6 Because of this, both king and baron jockeyed

for the rights due to their station and property.

In order to assert his immediate authority as well as raise

funds for further campaigns in France, John increased scutage, as

well as requiring extra payment for honors granted on his barons.

5 J.C. Holt, Magna Carta and Medieval Government, Hambledon Press (1985), 72.6 Holt, 103-105.

The king also increased the number of royal forests, at the

expense of the land and resources available to both serf and

gentry on the commons. Any baron outside of John’s favor faced

the threat of being disseized, or forcibly removed from his

property without due process. Disfavored barons also faced

imprisonment and exile without trial.7 Despite these

transgressions against his nobles, John’s policies could have

been overlooked had they achieved military and political success

abroad.

They did not. Any hope John might have entertained of

regaining his lost French territories dissipated with his defeat

at Bouvines in 1214.8 John’s military gamble against France had

failed, but he continued the process of afforestation and

disseizing of the nobility. Perceiving that their monarch had

failed them on every front, the English barons spent the next

year preparing to take up arms against John, leading to the armed

seizure of London in 1215. John agreed to meet their concessions,

7 Peter Linebaugh, The Magna Carta Manifesto (Berkeley: University of California Press, 2008), 22.8 Linebaugh, 26.

and at Runnymede the king put his signature and seal to a charter

drawn up by the barons.

The Runnymede charter directly addressed the baronial

grievances against the king via royal distraint, the act of

limiting one’s power by “seizing our castles, lands, possessions,

and in any other way they can, until redress has been obtained as

they deem fit”.9 A council of twenty five barons would “observe

and hold…the peace and liberties we [John] have granted and

confirmed”, ensuring that no scutage would be levied nor fines on

inheritance issued “unless by common counsel”. The safe conduct

guaranteed to merchants ensured free trade; and all forests

established during John’s reign, as well as the “evil customs

connected with forests and warrens”, were “forthwith

disafforested”. Most famously, articles 39 and 40 ensured that

“no freemen shall be taken or imprisoned or disseized or exiled…

except by the lawful judgment of his peers or by the law of the

land”.10 The freemen of this clause referred to the landed

gentry, i.e. the barons themselves and land-owning farmers,

9 “The Magna Carta”, from Liberty Library, the Constitution Society (March 11, 2003) http://constitution.org/eng/magnacar.htm10ibid.

rather than the villeins and sokamen that made up the majority of

the population. Nevertheless, the charter marked one of the

earliest legal instances in which individuals were guaranteed no

“refuse or delay [of] right or justice” along with shared

authority over a monarchy. Power and identity rested on the land,

and therefore land and property rights went hand in hand with

legal representation.

Unfortunately, the nature of medieval politics allowed for

two methods through which John could do away with the charter:

through force of arms and papal appeal. John chose both, gaining

the ecclesiastic support of Pope Innocent III and hiring an army

of French and Flemish mercenaries. In retaliation, the English

barons invited the dauphine Louis of France to act as regent

until John’s death in 1216. After the coronation of John’s son

Henry and a treaty with France in 1217, the baron’s first act was

to ensure that Henry III recognized the charter of Runnymede,

along with a new charter. 11

This Charter of the Forest built upon its predecessor, now

known as the Great Charter or Magna Carta, though it put more

11Linebaugh, 36.

focus on Forest law and the commons. It reaffirmed the

disafforestation of Richard and John’s demesne to the royal

boundaries of 1189, while checks were established on the

authority and jurisdictions of forest officers. Poaching remained

illegal, but “[h]enceforth no one shall lose life or limbs on

account of our hunting rights”. Forests continued to be opened

for freemen so that “at his own pleasure [he may] provide

agistment (grazing for livestock) for his woodland in the

forest”.12 A second publication of Magna Carta and the Forest

Charter from 1225 recognized both the need of access to natural

resources and needs of a population still recuperating from the

ravages of war, stating that a woman widowed by the war shall

“have her reasonable Estover within a common term”.1314 Originally

a French term meaning “what is necessary”, estover referred to the

available wood on the common land, which provided material for

both fuel and shelter. Under Henry III’s reign, access to and

protection of the commons and its resources became a royal

12“The Charters of the Forests”, from Liberty Library, The Constitution Society (September 4 2012), http://constitution.org/eng/charter_forest.html13 Linenbaugh, 42.14 Drew, 141.

mandate, symbiotically tied to the charter that both limited the

king’s power through his “free” subjects.

An eventual disregard for these charters, however, would

lead to a second Baron’s War in 1261, when expensive military

campaigns led Henry to have his sheriffs collect extra taxes

without consent of the barons. The nobles under Simon de Montfort

succeeded in temporarily ceding all political power to council of

25 barons in accordance with Magna Carta, until Henry’s heir

Edward killed Montfort at Evesham in 1265.15 The eventual Edward

I understood the importance of placating the nobility with legal

representation as well as demonstrating military prowess. To the

latter end, Edward set about the unification of Britain, first

through the annexation of Wales, then by intervening in the

Scottish dispute of succession. Asked by the Scottish nobility to

act as a mediator, Edward agreed to support the next king on the

condition that the successors recognize English overlord ship.

John Baliol grudgingly paid homage to Edward in 1291, making

Scotland another vassal.

15J.R. Maddicott, Simon de Montfort (Cambridge University Press, 1994), 342.

With virtually all of Britain under his control, Edward

turned to maintaining the remaining English holdings in France. A

new tax in 1294, known as the Maltolt or “bad tax”, targeted all

wool exports, and proved highly unpopular. Enacted without the

council of Edward’s barons, this violation of Magna Carta gave

the already disgruntled Scots a legal precedence to take up arms

in 1295, and caused Edward to turn his attention northwards.

The Model Parliament, called in 1296, met to pacify the

English nobility and address the rumors of a Scottish-French

alliance. This reaffirmation of the barons’ role in English

lawmaking provided Edward with enough military and financial

backing to thoroughly crush the Scots at Berwick, Dunbar and

Perth that same year, though William Wallace’s victory at

Stirling in 1297 threatened to undermine his regime. In November

of 1297, further baronial pressure prompted Edward to issue

Confirmato Cartorum. “And because by far the greater part of the

community of the realm feel themselves greatly burdened by the

maltolte on wool…we at their request have completely relieved

them and have granted that we will not take this or any other in

future without their common assent and their goodwill[.]”16 The

Confirmation Charter answered the nobles’ list of remonstrance

against Edward by reconfirming the two charters, thus winning

further financial support to march north, defeat Wallace at

Falkirk in 1298, and spend the rest of his life forcibly

pacifying Scotland. Edward’s reign is remembered for his military

achievements, but he understood the importance of placating his

subjects when necessary by adhering to Magna Carta, and his short

lived Maltolt acts as an early demonstration of the negative

quality of no taxation without consent.

Despite Wallace’s capture and execution in 1305, the Scots

continued to resist under a new figurehead: Robert Bruce. After

the Scottish clergy proclaimed him king in 1306, Bruce spent the

next fourteen years fighting, ultimately succeeding in driving

out the English military presence by 1319. Neither England,

however, nor the papacy recognized Scottish independence; in

fact, the continuing violence against fellow Christians and Pope

John’s wish for the two countries to launch a crusade led to

Scotland’s excommunication, and a papal interdict established a

16Drew, 151.

spiritual blockade which could extend to include any kingdom that

attempted to trade with the Scots. In an effort to lift the

excommunication, the Scottish nobility wrote to the Vatican in

1320.

This appeal, known as Declaration of Arbroath, drew upon a

pseudo history to illustrate its identity as a nation wholly

separate from England as well as its status as a “special charge”

of a holy church. This independent identity gave the Scots their

casus belli for continuing warfare against English “deeds of

cruelty, massacre, violence…and…other outrages without number

which he committed against our people”, while blaming the English

for the continuing violence that distracted from the intended

crusade. More importantly, the Scots cited the ancient custom

that they themselves chose their kings rather than divine

mandate, and the Scottish people had chosen to reject Edward’s

rule in favor of Robert, but they added that “if he should give

up what he has begun…we should exert ourselves at once to drive

him out as an enemy and a subverter of his own rights and

ours”.17 Whether this tradition was valid Scottish procedure or

17John Prebble, ed., “The Declaration of Abroath 1320”, from Liberty Library, Constitution Society (February 7, 2013)

not, by committing it to the written word it became a legal

pretext for the unheard of procedure of deposing a monarch. It

would take another six years before both the papacy and England’s

Edward III to recognize Scottish legal independence, but

ultimately the Scots’ intent to replace an unwanted foreign

regime, which had taxed them without legal consent, with a

monarch of their choosing.

Therefore, though the Scottish wars began under the pretext

of Magna Carta violation, they resolved by its end that the age-

old appointment and power of Scottish kingship rested within the

Scottish people (i.e. the landed nobility), who thus could remove

and appoint monarchs they deemed worthy of the position. Whether

this right was truly as ancient as the nobles stressed, its

presence in the Declaration made it a documented right, and

further bolstered Scotland’s independent political and social

identity until the Union of the Crowns in 1603.18

This union brought the separate British kingdoms under the

authority of one king, James Stuart. The resulting Stuart dynasty

http://constitution.org/scot/arbroath.htm18Edward J. Cowan, ‘For Freedom Alone’: the Declaration of Arbroath, 1320 (Tuckwell Press, 2003), 154.

jointly ruled England and Scotland for the better part of a

century, becoming characterized for their attempts at absolutism

and the resulting rebellions. Stuart monarchs, namely Charles I

and James II, tended to rule without a proper understanding of

their subjects. Both kings, Charles preeminently, saw absolute

authority as a divine right owed to all monarchs. Contemporary

kings across Europe shared this belief, comparing the

relationship between king and subjects to a father and his

children, and thus obligated to honor the fifth commandment, as

“[s]cripture taketh princes to be as it were fathers or nurses to

their subjects.”19 Charles’s conflict with Parliament over

raising funds for war with Spain bolstered his belief that he

could rule more effectively without them. The king dealt with

those who failed to honor their royal father by imprisonment

without warrant, as well as exile and the forced billeting of

soldiers within households.

Edward Coke, a leading Member of Parliament and former Chief

Justice of the King’s Bench, led the parliamentary opposition to

Charles’ absolutist policies. Coke, a staunch constitutionalist,

19 John Neville Figgis, A History of the Divine Right of Kings, University Press (1922), 96.

became known for two major accomplishments: elevating the two

charters to a greater level of social importance, and

spearheading the Petition of Right. Known for the saying “the

house of an Englishman is to him as his castle”20, Coke

reexamined elements of Magna Carta and the Forest Charter, and

applied new meaning to certain elements, namely Article 39. Like

other interpreters of the law, he tied the article to the concept

of habeas corpus; he varied, however, in his interpretation of “no

free man” (nullus liber homo), by extending its meaning to all

English subjects, men and women, who were not slaves or

indentured servants. Coke had social precedence for this.

Starting with the Peasant’s Revolt in 1381 and extending to the

release of Elizabeth I’s household servants in 157221, serfdom in

England had effectively come to a close. By Coke’s time, then,

both charters could readily be applied to the common majority of

the realm, rather than those in positions of power.

To that end, Coke spent his career after the succession of

James I ensuring that the English people were guaranteed “trial

by jury, habeas corpus, equality before the law, freedom from

20 Linebaugh, 74.21 ibid., 127.

arbitrary arrest, and parliamentary control of taxation”. Coke

also looked to the protection of the commons from royal

privatization, maintaining that “generally a man may common in a

forest”.22 His penultimate work, the Petition of Right, went

before the king in 1628. It targeted Charles’ proposed taxes, as

well as his abuse of habeas corpus, due process, and his enclosure

of the common lands. Before citing Article 39 directly, Coke

harkened back to Edward I’s unlawful taxation by pointing out

that “no tallage (land tenure tax) or aid shall be laid or levied

by the king or his heirs in this realm, without the good will and

assent of…the freemen of the commality of this realm”.23 Once

again, a king seeking a foreign war attempted to raise and

collect funds, along with incarcerating dissenters without due

process, without the consent of his subjects; now, however,

Charles’ trespasses violated not only the rights of the select

represented by the lords in Parliament, but also the common

majority.

22 Edward Coke, Institutes of the Laws of England, E. & R. Brooke (1797), 295.23 Francis Helen Relf & Sir Edward Coke, The Petition of Right, University of Minnesota Press (1917), 12.

This reality may have given Charles pause to think, for he

initially accepted the petition. Unfortunately, he suddenly

rejected it a year later, and chose instead to dissolve

Parliament. To add insult to injury, Charles had the now-retired

Coke’s manuscripts on Magna Carta and the Forest Charter

confiscated.24 The next ten years saw further violations of

personal liberties, taxation, and the commons. Riots across the

country were violently put down as the monarchy renewed its

enclosure policies, using the forests’ resources to build and

fuel the forces he intended for his intended foreign wars.25

Charles’ unpopularity was not limited to England. Already

considered a supporter of Catholicism on either side of the

border, Charles made the mistake of imposing a Book of Common

Prayer on both the National Covenant, the Presbyterians who

dominated Scotland, and England’s various denominations. Both

felt that Charles was violating Magna Carta’s first article,

which held that the Church of England “shall be free, and shall

have her rights entire, and her liberties inviolate”26 from the

24Linebaugh, 75. 25ibid., 76.26 Magna Carta, article 1.

crown. The Scottish Covenanters took up arms first in 1639. After

two years of fighting a losing war, the king demanded once again

that Parliament lend him funds, which they again flatly refused;

this time, the standoff erupted into civil war between royalists

who supported Charles and an army of well-trained commoners

fighting on behalf of Parliament. The string of victories this

New Model Army achieved against Charles forced him to flee to the

Scots for asylum, who then turned him over to Parliament. For the

first time since 1265, a king in violation of Magna Carta and the

Forest Charter was under the custody of his subjects, who had

every legal right to distrain him.

What gives Charles’ violations such magnitude, however, is

that they ultimately led to the first execution of an English

monarch by his subjects. All previous wars fought against Magna

Carta violators had sought to restrain the king both physically

and politically, but not to replace him or the monarchy itself.

Previous kings had been killed in battle, and other had died

under conveniently mysterious circumstances; most of these

regicides, however, would be justified as the transfer of divine

favor from a tyrant to the new monarch responsible for his death.

As Charles’ sentence of execution from the 27th January 1649 made

clear, it was the “Commons of England as assembled by Parliament”

who found that Charles, whom they had “trusted within a limited

power to govern…according to the law of the land”, had abused his

entrusted power by overthrowing “the rights and liberties of the

people”, thus making him an unfit traitor that “shall be put to

death by severing the head from his body.”27

This bloody removal of a king, unheard of in English

historical policy, harkens back to the Declaration of Arbroath,

which provided legal precedence for the subjects’ removal of any

monarch deemed unfit. It was the Scots who had first taken up

arms against Charles, under the arguable violation of Magna

Carta’s first article; and it was the Scots who relinquished

Charles into Parliamentary custody rather than grant him asylum.

The Scottish Covenanters likewise rejected the Rump Parliament

and Oliver Cromwell’s Puritan Commonwealth that had replaced the

Stuart monarchy, which would in turn be rejected by the English

ten years later in favor of monarchial restoration. From the

controversial regime changes of the English Civil Wars emerged

27 The Death Sentence of Charles I, History Learning Site (2012)

the political pretext for removing by any means necessary any

leader or executive power guilty of violating the liberties and

common rights of the people.

Though Magna Carta had been cited by Coke and others while

resisting Charles’ absolutist policies, the English charters

themselves tended to ignored and rejected by those who had

overthrown and executed him. Cromwell and his followers referred

to the charters as “Magna Farta” after removing the monarchy, and

deemed it a relic of a feudal Norman regime designed to elevate

the privileges of the elite.28 The Stuart Restoration under

Charles II likewise saw a gradual and ultimate rejection of the

Forest Charter, allowing for a renewed enclosure policy that led

to the end of the commons. England’s burgeoning empire abroad

required, among other things, massive amounts of fuel, building

materials and manpower. Along with the emerging African slave

trade, the closing of the commons to privatization provided

England with the timber and other natural resources to build what

would become pax Britannica, namely the ships of its navies.29

28 Linebaugh, 87.29Linebaugh, 74.

Despite this period when Magna Carta was pushed into

political obsolescence while the Forest Charter became virtually

rejected, the idea that certain rights and liberties were due to

every free man found new life in the philosophies of the

Enlightenment. The manuscripts Charles I had confiscated from

Edward Coke’s household, published posthumously as the Institutes of

the Laws of England in 1642, preserved his interpretations of both

charters through the Interregnum. It would have a lasting impact

on the events of the next four decades, as well as the career of

philosopher John Locke. The end of the 17th century would see

another Stuart monarch removed by the will of Parliament and the

vast majority of the subjects they represented.

The Restoration occurred with the consent of the English

Commons, and elements of the old absolutist regime, albeit in a

checked and reserved form, came with Charles II back to London.

Though both Magna Carta and Common Law continued to be respected

by both king and Parliament, a level of unease remained between

the crown and its subjects, which erupted when a “Popish Plot”

revealed that Charles’ brother and heir James, duke of York was a

Catholic.30 Charles and James’ father had been overthrown and

executed for, among many other things, being suspected of having

Catholic leanings; this revelation launched the Exclusion Crisis

that sought to remove James from the Succession. Parliament

passed a Habeas Corpus Act in 1679, though this operated more as

increasing political opposition to James than “for the better

securing the liberty of the subject”.

Nine Years later, history repeated itself when a “bloodless”

revolution removed James II in favor of William of Orange and

Mary Stuart. That same year, Parliament issued a Declaration,

extending the Commons’ royal offer to William and Mary while

establishing clear restrictions for the new monarchy. Ratified as

the English Bill of Rights in 1689, the bill banned the king from

any judicial action or sitting over newly formed courts of law;

while removing Royal Prerogative from acts of taxation, thereby

establishing a legal precedence for “no taxation without

consent”.31 Appealing to the dissent caused by arming of

Catholics under James II during the Revolution, the seventh

30Lois G. Schwoerer, The Declaration of Rights, 1689, Johns Hopkins University Press (1981), 73.31 The Bill of Rights, 1689, The Internet History Sourcebook (August 1997), http://www.fordham.edu/halsall/mod/1689billofrights.asp

article decreed that Protestant subjects may arm themselves

“suitable to their conditions, and as allowed by law”.

Protection was granted to petitioners or those speaking out

against the king in Parliament, whose election of members “ought

to be free” of royal influence. What began as an attempt to limit

the king’s authority over the personal liberties and property

rights of his landholding gentry reached a crescendo at the end

of the 17th century, as a new monarchy realized that remaining on

its unsteady legs meant acquiescing to the limitations and

personal freedoms demanded by the commons that Parliament

represented.

That great noise of natural and property rights echoed

loudly across the Atlantic. English settlements first emerged at

the end of the 16th century, initially as an extension of British

economic and commercial interests; then later as asylum for

political refugees, indentured servants and religious communities

dissatisfied with Cromwell’s Commonwealth. Edward Coke, at that

time Chief Justice of the Common Pleas, wrote the charter for the

Jamestown Colony in 1607, which stated that all persons living

within the colonies “shall have all the liberties as if they had

been abiding and born within this our realm of England or any

other of our dominions”.32 Similar liberties would be found in

the charters of later colonies, namely Massachusetts, Connecticut

and Rhode Island. Roger Williams, Coke’s former apprentice, aided

in writing Rhode Island’s founding charter, wherein “[n]ow know

bee, that wee beinge willinge to encourage the hopefull

undertakeinge…to secure them in the free exercise and enjovment

of all theire civill and religious rights, appertaining to them,

as our loving subjects”.33 Though royal assurance of natural

rights accompanied the start of the companies, any mention of the

Forest Charter or protection of the commons remained absent. In

this regards, privatized land claims and enclosures, served two

purposes: the removal of native tribes,34 and the claiming of

resources upon the newly cleared lands. Shared land usage had no

place in the affairs of empire, but natural rights would not be

divorced from the commoners.

Magna Carta remained relevant to colonial law and colonial

consciousness well after their founding. The 1641 Massachusetts 32 G. Tully Vaughn, “Magna Charta and the Colonies”, Baronial Order of Magna Charta (1998-2003), http://www.magnacharta.com/bomc/magna-charta-and-the-colonies-ii/33 Vaughn, “Magna Charta and the Colonies”.34 ibid.

Body of Liberties, published on the eve of the English Civil War,

guaranteed that “no man’s person shall be arrested, restrained,

banished, dismembered, nor any ways punished…unless it be…

established by a generall Court and sufficiently published”35;

while William Penn published the first copy of Magna Carta in the

New World in 1687, just two years before Parliament put the

ancient charter’s latest incarnation before a recently replaced

monarchy. Three years before William Blackstone produced a 1750

edition of Magna Carta that he supposedly saved from being “gnawn

[on] by rats”, the governor and aids of Massachusetts requested

two copies of Coke’s interpretation.36

With the liberties of Magna Carta woven so tightly into the

colonies, its continuing state of revolution and evolution across

the Atlantic becomes obvious. The 1760’s phrase “No taxation

without representation” emerged in the 1760’s after Parliament

approved the Stamp Act and Sugar Act, while lacking actual

representation of the colonies-a violation of the 1689 Bill of

Rights that contained faint echoes from the tensions of Edward I

and Charles I. A student of Locke, Thomas Jefferson drew upon

35 ibid.36 ibid.

him when writing the Declaration of Independence, which justified

the duty “to throw off such government, and to provide new Guards

for the their future security” by maintaining that “all men are

created equal” and therefore natural inheritors of “Life, Liberty

and the pursuit of Happiness”37; this belief, that a king subject

to the same laws as those he rules may be removed, paralleled the

statement of the Scottish nobility in 1320. These comparisons

have been made many times before, and countless historians have

traced the 1791 United States Bill of Rights to both its 1689

predecessor and the meeting at Runnymede in 1215; it serves,

however, to illustrate Magna Carta’s evolutionary timeline, as

many of its variations tend to converge nicely after 1776, and

elements that have not survived the test of time so easily, such

as the Charter of the Forest, become that much more obvious.

As the majority of this paper demonstrates, a direct line of

natural rights and liberties may be traced from 1215 to 1791 and

beyond. Magna Carta has taken several new forms over the

centuries, cementing the concept of “certain inalienable rights”

with nearly eight hundred years of acceptance and adherence. The

37 “Declaration of Independence”, from Liberty Library, the Constitution Society (November 10, 2011), http://constitution.org/usdeclar.htm

question that must always be asked, however, is how relevant

Magna Carta and its tenants remain today. Which parts have been

discarded, which are placed on the current political and social

pedestal, and which are currently under violation? Though easily

applicable across the post-colonial world, understanding the

state of Magna Carta in the United States offers a window into

the current understanding and development of natural liberties.

Of the liberties that have stood the test of time, article

39 and its implications of legal representation remains the most

well known and recited, and therefore rings with a higher

resonance than its sister articles. As Magna Carta’s ultimate

purpose established all free men as equals under the law, the

concept of “no freemen” being “taken or imprisoned…except by the

lawful judgment of his peers” removed the monarchial threat of

imprisoning, executing or exiling members of the baronage without

the knowledge or consent of their compatriots, thereby keeping

the policies of the central authority, and those voices who might

speak out against it, apparent for all to see. The inability to

defend oneself before members of his community breeds ignorance,

confusion and division, which works to the advantage of the

individual executive power at the expense of the majority.

Such practice has been described from St. Augustine to Lenin

as tyranny, and legislature from 1215 to 1791 provided a bulwark

against it. Methods of suspension, however, have been

implemented. An 1861 bill of indemnity from the House of

Representatives, passed in 1863 as the Habeas Corpus Suspension

Act, released President Lincoln and Congress from liability when

incarcerating prisoners of war without trial, until being lifted

by Proclamation 148.38 The Force Acts and Civil Rights Act in

1871 likewise withheld habeas corpus from any individuals or

groups wishing to impede Reconstruction. The declaration of

martial law in Hawaii in the immediate wake of Pearl Harbor again

suspended due process.39 Whereas Magna Carta and its later

incarnations had come about because of and through military

conflict, one of its most fundamental writs became a hindrance in

19th and 20th century warfare that was to be bypassed.

Not surprisingly, one of the first acts of the ongoing

“War on Terror” involved further suspension of Magna Carta’s

38 Jonathan White, Abraham Lincoln and Treason in the Civil War, LSU Press (2011), 145.39Philip Margulies, The Writ of Habeas Corpus (Rosen Publishing Group, 2005), 29-30.

Article 39. The 2001 Presidential Military Order gave President

Bush the legal authority to recognize any suspected non-citizens

as enemy combatant and hold them indefinitely. This reconfirmed

the USA PATRIOT Act (H.R. 3162), which allows the Attorney

General to “take into custody any alien who is certified” as per

the previous section as a suspected terrorist, and the Attorney

General shall maintain custody “irrespective of any relief from

removal for which the alien may be eligible, or any relief from

removal granted the alien”, during which time “no court shall

have jurisdiction to review, by habeas corpus petition or

otherwise, any such action or decision”.40 This legislature,

targeting immigrants under suspicion of terrorism, pushes the

centuries old right of trial by peers aside in favor of Federal

interest and national security. Despite its violation of the

charter at the bedrock of this country’s foundation, as well as

the very vocal outrage it has inspired, President Barack Obama

extended the PATRIOT Act in May 2011, 24 days after the death of

Osama bin Laden.41 Republican protest followed; not because of

40The Senate of the United States of America, “USA PATRIOT Act (H.R. 3162), October 24, 2001. 41James Abrams. “Patriot Act Extension Signed by Obama”, Huffington Post (May 27, 2011), http://www.huffingtonpost.com/2011/05/27/patriot-act-extension-

the extension or the natural rights it violates, but because

Obama signed it with an autopen.

The controversy of upholding habeas corpus aside, other

debates have taken both the political and social stage, namely

the debate over gun control. The increasing rate of gun related

violence, and the accompanying death toll, has set the stage for

years of contestation. Those seeking an end to gun violence call

for thorough background checks, as well as a ban on both extended

ammunition magazines and assault class firearms, including the

AR-15. Gun lobbyists defend their position by citing both the

Bill of Rights’ Second Amendment and Magna Carta itself. Their

position, calling on the “right of the people to keep and bear

arms”42, holds that the people must remain fully armed in order

that a “well regulated militia” would remain efficiently armed in

order to “establish justice, insure domestic tranquility” and

“provide for the common defense”43by answering any possible call

from a majority Congress to take up arms against any grossly

signed-obama-autopen_n_867851.html42 Gregg Lee Carter, Guns in American Society, ABC-CLIO (2002), xxxii. 43“Constitution of the United States of America”, from Founding Documents, Constitution Society (November 10, 2011), http://constitution.org/constit_.htm

unfit executive administration. They find historical

justification for this in Magna Carta, and to an extent the

Declaration of Arbroath, as these documents provide the public

and their representatives to defend their natural rights against

and remove an unfit king.44

Magna Carta itself does not make any provisions for the

arming of the English subjects, or the barons bringing the king

to task. A previous document, the Assize of Arms of 1181,

dictated that “every free man” (except Jews) must arm himself

with the weapons and armor his lands can afford. A royal order

rather than a legal right, it demanded that all free men owning

lands sufficient to his standing be armed with a “gambeson” (body

armor), “shirt of mail”, helmet, shield and lance; while “whoever

possesses one knight’s fee”45 be armed with the same equipment

per lands in his possession. Every man of station, then, would be

armed with the equipment his lands could afford, and a later

article required anyone “who has more arms than he ought to

have...shall sell them…and none of them shall keep more arms than

44Carter, 374.45 “Assize of Arms, 1181”, from Liberty Library, Constitution Society (February 7, 2012), http://constitution.org/eng/assizarm.htm

he ought to have by this assize”. This provision required every

free subject to be armed, but armed with no more than what he

could afford. The 1689 Bill of Rights likewise allowed for

Protestants to arm themselves “suitable to their conditions, and

as allowed by law”.46 All free men could arm themselves with what

they could afford and what the law provided; and laws predating

Magna Carta demanded that they owned no more arms than they could

afford.

The only mention of weaponry Magna Carta makes concerns the

arms of foreign mercenaries hired by the king. The barons at

Runnymede required that the king “banish…all foreign born

knights, crossbowmen, serjeants, and mercenary soldiers who have

come with horses and arms to the kingdom’s hurt”. While the

article intended to remove the threat of an armed force answering

only to the king, the prominent mention of crossbowmen

illustrates a particular apprehension to the weapon. In 1139, the

Second Lateran Council attempt to outlaw the use of crossbows

against Christians.47 Easy to learn and capable of relatively

46Bill of Rights 1689, from The Internet History Sourcebook (August 1997), http://www.fordham.edu/halsall/mod/1689billofrights.asp47 Ralph P. Gallwey, The Book of the Crossbow (Courier Dover Publications, 1916), 3.

cheap mass production, the crossbow’s range and armor piercing

power meant a soldier with only a few weeks’ training could bring

down knights in full armor on the battlefield. The crossbow,

then, became recognized as a high grade military weapon,

surpassing most other weaponry at the time.48

While crossbows grew in prominence on the continent, it

remained largely absent from the Medieval English records. The

English instead required all men to practice weekly during the

14th century with the longbow49, originally a hunting weapon,

which they used to devastating effect at Crecy and Agincourt. The

English relied on an adapted hunting weapon to defend themselves

in the absence of the crossbow. Unlike the crossbow, the longbow

was used in England both for hunting and military purposes,

making it the weapon of the commons. Even during the medieval

period, with constant warfare and severe class separation,

English lawmakers understood the usefulness in using armed

commoners to maintain the limits of central monarchial authority

and protect those rights that we recognize as personal liberties

today. This also meant treading the line between protecting

48Gallwey, 34. 49 ibid., 36-40.

natural rights and order over an armed populace; and even with

the onset of firearms in the 16th and 17th centuries, English

rights guaranteed an armed but controlled populace. A right to

bear arms, then, should be protected-but within understandable

limits.

Though Magna Carta as a treatise for human liberties

survived into the present and continues to influence American

policy making, its sister charter fell by the wayside after the

17th century. The Forest Charter fell out in favor of private

interests and the rise of the free market economies espoused by

Adam Smith in 1776. Despite the death knell Garrett Hardin’s

Tragedy of the Commons supposedly rung by stating that “freedom

in a commons brings ruin to us all”,50 a number of initiatives

have achieved a level of success.

Two Nobel Prize winners pioneered the use of common land

stewardship during the 20th century. Wangari Maathai, founder of

the Green Belt Movement, won the 2004 award for the program’s

successful reforestation and conservation efforts that have

supplied Kenya with jobs, fuel, food processing, and

50 Garrett Hardin, Tragedy of the Commons (Macmillan Press, 1968), 4.

environmental preservation.51 Elinor Ostrom likewise won the

Prize for Economics in 2009 for her work in common pool resource

management in rural and metropolitan areas, concluding that

common-pool resources (CPRs) will work in scenarios of community

cooperation. “More cooperation occurs than predicted, ‘cheap

talk’ increases cooperation, and subjects invest in sanctioning

free-riders”.52 Both efforts have faced an uphill battle against

a dominant free-trade world society and found certain levels of

success, while answering such concerns as environmental

protection and employment, via inter-community cooperation.

Writers such as Noam Chomsky, however, feel that any efforts of

reviving the commons that the Forest Charter protected remain too

little, at least within first world nations. “What we do right

now, or fail to, will determine what kind of world will greet

[the millennium of the Magna Carta]”.53 Despite this negative

view of the future, Chomsky and Peter Linebaugh’s writings, and

51 Wangari Maathai, The Green Belt Movement: Sharing the Approach and the Experience (New York: Lantern Books, 2003), 24-29.52 Elinore Ostrom, Beyond Markets and States, Indiana University Press (2009), 14.53 Noam Chomsky, “Destroying the Commons”, MichaelMoore.com (July 22, 2013), http://www.michaelmoore.com/words/mike-friends-blog/destroying-commons-how-magna-carta-became-minor-carta

the efforts of both Maathai an Ostrom demonstrate that the Forest

Charter is finding new life in a new millennium.

Throughout the Charter of the Forest’s duration, the intent

has been to ensure a level of welfare in English society, i.e. a

level of health, sustenance and shelter for its “free” subjects.

To this end, politicians squabble over policies of health care

and welfare. The Affordable Care Act, for example, offers

universal health care for all US citizens, at the cost of higher

Medicare taxes and playing against the American tendency to

equate “universal” with “socialist”.54 The American welfare

system, developed as part of the New Deal and reformed by Clinton

in 1996 to encourage employment with temporary aid, was

readjusted by the Obama administration to remove elements of the

work requirements in an effort to lessen paperwork and allow for

adjustable state policies; Republicans immediately cried foul and

claimed Obama had gutted the welfare system.55 Despite the

definite need for reform, the provisions of both Magna Carta, the54 Katie Thomas, “Consumer Questions on Health Care Act, and the Answers”, TheNew York Times (29 June 2012), http://www.nytimes.com/2012/06/30/us/health-care-act-questions-and-answers.html55 Tampa Bay Tribune Staff, “Mitt Romney Says Barack Obama’s Plan for Welfare Reform”, The Tampa Bay Tribune PolitiFact.com (Aug.7 2012), http://www.politifact.com/truth-o-meter/statements/2012/aug/07/mitt-romney/mitt-romney-says-barack-obamas-plan-abandons-tenet/

Forest Charter and it later confirmations make clear that the

subjects the charters protected were due access to the resources

that would allow them to provide for themselves and remain

healthy. Whether this came through access to wood, herbs, crops

and pasture in the commons, or to health care, housing and

temporary financial aid; all free men, a title that has been

extended to all law abiding citizens today, have a natural right

to the necessities of life, as well as legal representation under

the law which provided them with liberty and the pursuit of

happiness.

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