Magna Carta Chapters 4 and 5 and the Origins of Accountability

Journal of Law and Religion, 2015

This Article examines the influence of the Magna Carta on the development of rights and liberties in the Anglo-American common law tradition, especially in the seventeenth century. Originally issued by King John of England in 1215, the Magna Carta set forth numerous prototypical rights and liberties that helped to shape subsequent legal developments in England, America, and the broader Commonwealth. The Magna Carta served as an inspiration for seventeenth-century English jurists like Sir Edward Coke and Puritan pamphleteers like John Lilburne who advocated sweeping new rights reforms on the strength of the Charter. It also inspired more directly the new bills of rights and liberties of several American colonies, most notably the expansive 1641 Body of Liberties of Massachusetts crafted by Nathaniel Ward, which anticipated many of the constitutional rights formulations of 18th and 19th century America.

Today, and for much of this year, we celebrate the 800 th anniversary of a very old document or bunch of documents, that few of us have read and few of those few fully understand. Even among those who do understand, there is considerable controversy about their meanings, significance(s), and what connections, if any, exist between then and now. A simple question, which is nevertheless very hard to answer, is: What have these ancient documents got to do with us? My answer is: less, more, and different than many people believe.

One of the great turning points in political and social history occured on a field near Runnymeade in 1215, when John of England put his seal to a charter granting liberties to every free land-holding man in England. Originally meant to pacify his rebellious barons, this Charter of Liberties and the Charter of the Forest have been the driving force of revolutions, civil wars and unending political debates in Britain and the United States. How did the privileges demanded by a handful of angry English nobles become the basis for constitutions and modern natural rights, such as habeus corpus? This paper traces Magna Carta's evolution from Runnymede across the Atlantic to the floor of Congress and the Supreme Court, while analyzing the relevance of the Great Charter's tenants on current issues.

Daniel B. Magraw, Andrea Martinez, Roy E. Brownell, eds, Magna Carta and the Rule of Law, , 2014

Throughout the English-speaking world, Magna Carta is still celebrated eight hundred years after it King John agreed to it in 1215 as the first attempt to impose limitations on a monarch’s power and to guarantee fundamental rights to his subjects. Today multitudes of Americans are aware that it has some connection with the civil liberties that they enjoy as United States citizens. King John’s opponents were familiar with doctrines of the supremacy of the law, but no effective means of subjecting a tyrannical ruler to the law had been devised. The English barons’ problem of defining and limiting what later became known as the royal prerogative lies at the heart of their rebellion of 1215-17, and Magna Carta would become periodically the focus of struggles against the despotic rulers in England and later in eighteenth-century North America. Obviously, much myth surrounds a document still hallowed after eight centuries, and grasping its meaning requires placing it in its historical context.

This article describes the context in which Magna Carta was obtained, distinguishes the different versions of the charter and signposts particular documents and publications in the history of its transmission and interpretation up to the early nineteenth century, with particular focus on its legal meaning and interpretation through time.

Archival Science, 2007

This article traces the trajectory from distrust to trust in written records as proof of the conveyance of land in England between the eleventh and seventeenth centuries. During that period of time, such records were transformed from an aide-memoire of an essentially oral act, to the indisputable proof of the act they recorded and, finally, to the very embodiment of the act itself. The article focuses specifically on one particular class of conveyance, i.e., transfers of freehold interests in land held by free tenure, on one particular form of conveyance, i.e., feoffments with livery of seisin, and on one particular type of record, i.e., the charters that recorded such conveyances. The article concludes that the ascension of written proof by the end of the 17th century is attributable to a number of factors, among them, the growth of royal jurisdiction over land, the rise of literacy, the growth of commerce, and an increasing distrust on the part of the judiciary in the capacity of a lay jury to properly assess written records. In the area of private law in common law jurisdictions, written records are recognized both as proof and as evidence. As proof they constitute or embody jural acts, a jural act being defined as, ''a manifestation of the will by a private individual, directed to the origin, termination, or alteration of rights.'' 1 What jural acts are concerned with are voluntary relationships, i.e., relationships that are created, transferred, or extinguished by the expressed will of the parties. Typical contemporary examples of jural acts are contracts and wills.

Magna Carta and the Rule of Law, 2014

With the 800th anniversary of Magna Carta approaching, interest has been piqued in the charter, which influenced the development of the common law in its early stages. One debate surrounding the charter is the degree to which Roman and canon law influenced the text. The debate has important implications for the identity of the common law. We tend to think of common law as a very English institution, very different from those continental civil-law systems that trace their ancestry back to medieval Roman and canon law. If Roman and canon law influenced the charter, it could serve as evidence that the early common law was not so insular in its outlook as we have thought, and that it really should be placed in a broader European context. Roman and canon law—collectively called the ius commune in the Middle Ages—certainly made their mark on Magna Carta, but this paper argues that the elements of the ius commune that found their way into Magna Carta were inserted not to influence the early development of the common law, as many scholars have assumed, but rather because ius commune, and more particularly canon law, was a political language that appealed to various important constituencies in England and abroad. Appeals to canon law in Magna Carta were more likely placed there to elicit support from the papacy than to reform English law. This paper places Magna Carta in the longer context of the Church reform movement and its instantiation in England—the Becket dispute—and argues that Magna Carta’s ius commune-influenced provisions were attempts by English actors to give universal significance to their local disputes.

In 2015 the 800th anniversary of the promulgation of Magna Carta was celebrated Amongst the great number of initiatives for this event, Professor Mark Hill QC and the Reverend Robin Griffith-Jones have edited an interesting book, which gives a detailed account about the origins of Magna Carta, the social and political context of the time, and the religious background which forms the very foundation of the main principles of the Charter. As neither an historian of law, nor a specialist in public law, nor an expert in the field of law and religion, my essay discusses some aspects of the “global legacy of the common law”, whose origins, to my understanding, are closely interconnected with Magna Carta. First, I will depart from the assumption that one of the most important aspects of Magna Carta is the idea of law as a limit of the sovereign’s power. In reality, this concept was not new, nor was it peculiar to English law, as it had been developed on the Continent by the efforts of medieval jurists, but it was fixed in ‘black letters’ in Magna Carta at the end of a difficult period of controversies and it can be said that it is at the origin of the doctrine of the Rule of aw. Second, I will consider the process of codification of law taking place on the Continent between the end of the XVIII and the beginning of the XIX century and in particular the idea of Rechtsstaat, shaped on different basis than the conception of the Rule of Law in English law, which flows from the Magna Carta and continues to characterize, at various degrees, the common law legal mentality. Third, I will concentrate on the main legacies of the conception of law which underlies the doctrine of Rule of Law, focusing on some features which still connote the common law tradition as opposed to the civil law tradition: the idea of the primacy of the unwritten law over statutory law and the unity of jurisdiction; the attitude of judges towards the interpretation of statutes; the circulation of precedents in a vibrant legal tradition. At the end, I will draw some conclusions.

SEEU Review, 2015

The concept of Rule of Law is the cornerstone of the proper functioning of the judicial system in any modern democratic society. It is a basic concept of defined rights and liberties to all persons, which offers protection from arbitrary prosecution and incarceration. This principle was firstly stipulated by the instrument of Magna Carta and it is considered as a key principle for good governance in any modern democratic society. The development of the rule of law principle is personified through the independence of the Judiciary as a third branch of government. The contemporary democratic societies are faced with many challenges upon which in order to protect their values of the democratic system, often limit the rights and liberties of persons. It is the role of the courts and the judicial system to stop these injustices and protect the individual from any form of liberty deprivation and rights limitations. Before the promulgation of the Magna Carta in 1215, the rule of law was pe...

Carta

Professor the Rt Hon Sir David Edward KCMG QC FRSE * As the anniversary year of Magna Carta draws to a close, it would be supererogatory for a Scots lawyer to add to all that has been written about it by the President and Justices of the Supreme Court (concurring in part, dissenting in part). Scotland is, after all, the only part of the Common Law world where Magna Carta is not, and never has been, part of the law-albeit Alan of Galloway, Constable of Scotland, was one of King John's purported advisers'. Nevertheless, Scotland is firmly part of the Common Law world (though we like to say-without too much contemporary justification-that we are also part of the Civil Law world). We share the same Supreme Court and we share the same attachment to the ideal of the rule of law reflected in Magna Carta.