Magna Carta as Proto-Constitution: Justice, Religion, and Citizenship

Introduction: A Document Thrust Upon a King

The Magna Carta does not look like a constitution. In point of fact, it looks like a list of demands issued by hostage-takers — which, in some sense, it was. Some kings are born constitutional monarchs, and some kings achieve it, but King John had constitutional monarchy thrust upon him. We must recognize that the Magna Carta was not itself authored by the head of state. In 1215, when the document was signed at Runnymede, the head of state was King John — also known as "John Lackland," the youngest son of Henry II and Eleanor of Aquitaine — and he was compelled to issue it by the aristocracy and clergy.

This is what makes the document so peculiar to read. The opening sentence is in the voice of King John, offering "greeting" to "the archbishops, bishops, abbots, earls, barons, justiciars, foresters, sheriffs, stewards, servants, and to all his bailiffs and liege subjects."¹ Yet the numbered clauses that comprise the main body, while technically still spoken in the king's voice, grant rights and issue laws with all the temporal authority of the sovereign — while their grocery-list character makes clear that they were demands of the aristocracy, now enacted by royal decree. In some sense, John's viability as sovereign was conditional upon his signing the document, since he otherwise might have faced rebellion or deposition.

This essay argues, through a close analysis of the text of the Magna Carta — with particular focus on justice, religion, and citizenship — that, although the document does not resemble a constitution in form, it is a kind of proto-constitution, containing in embryonic form all the elements we associate with constitutional law. In other words, the Magna Carta of the thirteenth century and the United States Constitution of the eighteenth century share a meaningful evolutionary similarity. Much of what twenty-first-century readers would consider the essential goals and characteristics of a constitution can be found in primitive or embryonic form within the text of the Magna Carta.

Civil Law and the Foundations of Justice

In terms of the establishment of civil laws — such as the procedural dynamics of crime and its legal handling — it is worth examining Clauses 38 through 40 of the document closely:

38. No bailiff for the future shall, upon his own unsupported complaint, put any one to his "law," without credible witnesses brought for this purpose.

39. No freeman shall be taken or imprisoned or diseased 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.

40. To no one will we sell, to no one will we refuse or delay, right or justice.²

This is the closest that the Magna Carta comes to resembling an actual constitution. Clauses 38 and 39 will be recognized as primitive statements of some of the bedrocks of criminal law: the necessity of witness testimony and the rights associated with habeas corpus. Clause 40 in particular sounds like a broad statement of principle placed in the mouth of the head of state: "To no one will we sell, to no one will we refuse or delay, right or justice." The modern reader must recognize that King John is employing the "royal we" — the sentence means, in effect, "To no one will the King sell, to no one will the King refuse or delay, right or justice." This is a firm limitation upon the powers of the sovereign, and was intended as such.

Yet the use of the "royal we" also gives the sentence the sense of the king's role as head of state speaking for the entire population — the king is traditionally given a plural pronoun because he is meant to represent all of his subjects — and so the limitations upon his executive authority read as a general statement of principle regarding how justice is to be done in England. Justice is not for sale, it is available to all, and it is available swiftly.

It is worth noting that this last provision — the guarantee of speediness in justice — was not something the Framers of the United States Constitution included within their foundational text. Instead, in the Bill of Rights, the Sixth Amendment guarantees that "[i]n all criminal prosecutions the accused shall enjoy the right to a speedy and public trial."³ The Magna Carta thus made a provision that the U.S. Constitution only guaranteed by Amendment. As events at Guantanamo Bay have illustrated, denying a speedy and public trial is a fairly routine abuse of power on the part of an unchecked sovereign — whether that sovereign is King John of England or a modern executive authority.

Church, State, and Religious Establishment

The second way in which the Magna Carta resembles an embryonic constitution lies in its establishment of a relationship between church and state. The conclusion of the document, in Clause 63, reads:

Wherefore it is our will, and we firmly enjoin, that the English Church be free, and that the men in our kingdom have and hold all the aforesaid liberties, rights, and concessions, well and peaceably, freely and quietly, fully and wholly, for themselves and their heirs, of us and our heirs, in all respects and in all places for ever, as is aforesaid. An oath, moreover, has been taken, as well on our part as on the part of the barons, that all these conditions aforesaid shall be kept in good faith and without evil intent. Given under our hand — the above-named and many others being witnesses — in the meadow which is called Runnymede, between Windsor and Staines, on the fifteenth day of June, in the seventeenth year of our reign.⁴

To appreciate this passage fully, we must recognize what the Roman Catholic Church meant to England in 1215. It existed in an elaborately bureaucratic form. The first recorded writings by an inhabitant of the island of Britannia are those of Saint Patrick — a Roman Christian writing in the fifth century or thereabouts. The Church was obviously the most powerful institution in the centuries when England was politically a loose and unstable collection of Germanic kingdoms, with irregular observance of prior legal codes such as the Salic Law, the Brehon Law, or indigenous systems like Gavelkind (practiced almost exclusively in the county of Kent, though bearing some resemblance to continental legal systems).

In other words, the Roman Catholic Church's investment in the Magna Carta — stated outright in the opening and closing paragraphs of the text — practically made the document carry the authority of divine sanction. The clergy's stake in the terms of the Magna Carta is explicit from the beginning: "the English church shall be free, and shall have her rights entire, and her liberties inviolate."⁵ By way of context, it is worth recalling that from 1154 to 1159, the Pontifex Maximus of the Roman Catholic Church was Pope Adrian IV — born Nicholas Breakspear — the only Englishman ever elected to the papacy. The prestige of England's Roman Catholic Church was tremendous in King John's time, as it would remain through Henry VIII's ironically Papally-bestowed title of "Defender of the Faith" some three centuries later.

At the time of the drafting of the U.S. Constitution, there was still a Church of England, though most of the northeastern colonies had been founded by those religiously disenfranchised by the Crown — Maryland's Roman Catholics, Pennsylvania's Quakers, Massachusetts's Unitarians. Thus the First Amendment to the U.S. Constitution addresses the establishment of religion as clearly as the first paragraph of the Magna Carta does — but America's religious pluralism required that establishment be defined in the negative: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."⁶ Where the Magna Carta affirms a specific church's freedom, the First Amendment forecloses any government preference for religion at all.

Conclusion: Constitutional Flexibility and Historical Change

And it is at this point that we may recognize the ultimate similarity of the Magna Carta to the U.S. Constitution: historical change means that written documents of state never really tell the whole story of how a given society operates. The heavy-handed presence of the Church only in the opening and closing of the Magna Carta, for instance, indicates that a political crisis is being managed by religious authorities. The rest of the document is a list of itemized political grievances, which incidentally establish laws governing economic policy, compensation for military service, and the execution of justice itself — in other words, precisely the sort of business that can only be managed by a large centralized government.

The document is itself intended to curb the powers of that large centralized government, and in doing so it points the way toward later constitutions, including that of the United States. So much of the U.S. Constitution is dedicated to limiting the powers of a centralized executive — hence the famous separation of powers into executive, legislative, and judicial branches, with checks and balances among them — that it is appropriate to view the Magna Carta as a much earlier analogue to this kind of foundational civic document. The clauses of the Magna Carta function as checks and balances placed upon King John by the lords temporal and spiritual of England. That is how we may understand it as a medieval version of a constitution: not identical to its successors in form, but unmistakably their ancestor in purpose.

Bibliography

Magna Carta. In Albert Beebe White and Wallace Notestein, eds., Source Problems in English History (New York: Harper and Brothers, 1915).

United States Constitution. Amendment I; Amendment VI, sec. 1, cl. 1. [No bibliography entry required under Turabian 7th edition.]