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Thursday, May 7, 2015


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Is the Concept of Due Process Derived From the Magna Carta?




Dan Klerman, a professor of law and history at the USC Gould School of Law, makes a convincing case (related here yesterday) for the proposition that—contrary to the common conception—our constitutional right to trial by jury cannot be traced back to the Magna Carta. But what of other fundamental rights in the United States—such as due process—that are generally believed to have been derived from the document on which King John, under compulsion of angered barons, placed his seal that summer day in Runnymede 800 years ago?

Klerman’s discourse kicked off the first of two panel discussions on the topic of the Magna Carta (or “Magna Charta” or “Great Writ”) held April 30 at the Los Angeles County Law Library. He zeroed in on two of the 63 provisions, or “chapters.”

Chapter 39—the one invoked as the source of the right to a jury trial—reads:

“No freemen 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.”

Aside from being cited as the original source of a right to a jury, that paragraph is widely regarded as the progenitor of “due process.”

Chapter 12 is thought to be the ancestor of the concept that taxes may not be levied except by the consent of the people. It says:

“No scutage nor aid [tax] shall be imposed on our kingdom, unless by common counsel of our kingdom, except for ransoming our person, for making our eldest son a knight, and for once marrying our eldest daughter; and for these there shall not be levied more than a reasonable aid. In like manner it shall be done concerning aids from the city of London.”

What is “scutage”? Klerman explains:

“Feudalism is a system where lords give lands to their vassals in return for military service. And military service could either be in person…or it could be by money. And money, as a monetary fulfillment of a military obligation is called ‘scutage.’ ”

The exacting of funds from vassals was of keen concern to the barons because they were the vassals of the king. The professor notes that “there were no clearly defined limits on how much scutage would be paid” and, in practice, he says, “King John collected scutage more often, and at higher levels, than any of his predecessors.”

If the barons did not pay up, consequences were severe.

“John imprisoned his vassals and confiscated their lands” based on non-payment of assessments “with more frequency than any of his predecessors,” Klerman relates.

The phrase “common counsel of the realm” does not connote consent by “all free peoples,” Klerman advises; Chapter 14, he explains, “makes clear” that the phrase “means the consent of the barons.”

Well, if you look at Chapter 14, you’ll see that it applies a bit more broadly than to the barons…but Klerman had only 15 minutes to present his broad-ranging preface to the discussion, and can surely be forgiven a bit of simplification. The chapter says that in obtaining the “general consent of the realm,” a meeting had to be set, with “the archbishops, bishops, abbots, earls, and greater barons” being summoned by letter delivered to them (in modern terms, by personal service) and sheriffs and bailiffs spreading the word among tenants of the barons.

“King John never intended to obey Magna Carta,” Klerman asserts. He gathers that from the fact that “as soon as he signed it, he petitioned the pope to annul it, claiming he signed it under duress.”

Klerman recites that “the pope promptly complied.”

He says that the Magna Carta “was an attempt to remedy specific abuses by a particularly evil feudal king” and that “it was swiftly annulled and had little immediate legal effect.”

While the “beginnings” of the Magna Carta “were pretty abysmal,” Klerman comments, “it has a pretty illustrious history.” He says that “basically every generation has turned to” it in support of a cause.

Klerman whisks us from the 13th Century to the 17th Century, telling of Edward Coke, a protagonist of the Stuart kings who claimed a divine right to rule, and to rule as they saw fit without reference to temporal laws.


The educator says that Coke “at various times was attorney general, chief justice of England, and member of Parliament, when he wasn’t imprisoned by the king.”

He continues:

“And Coke argued that Magna Carta was historical precedent for the idea that there were restraints on royal powers.”

Chapter 39, Klerman says, was invoked by Coke to challenge the permissibility of royal courts denying the right to trial by jury.

Coke also drew attention to Chapter 12, the speaker tells his audience. While the Magna Carta provided “that one particular feudal obligation shouldn’t be levied except by the consent of the barons, the highest nobility,” Klerman says, Coke “argued that Magna Carta was an historical practice, with the idea that there were restraints on royal power.”

He observes that Coke took “scutage” to mean “any taxes,” and he “generalized the consent of the barons to mean consent of Parliament.”

Klerman remarks:

 “So, in one respect, Coke was a terrible historian, but sometimes there are more important things than getting history right, and his interpretations are important for the establishment of liberty and democracy in England.”

Principles Coke attributed to the Magna Carta “were then echoed several centuries later by the American colonists in the Revolutionary period,” the professor continues, noting:

“They, too, pointed to Chapter 12…as precedent for and authority for the idea that there shall be no taxation without representation….

The colonists, Klerman says, invoked Chapter 39, in putting forth “a critique of the admiralty courts and other English courts that operated without trial by jury.”

He reaches this conclusion:

“…[D]ue process can indirectly be traced to Chapter 39. The idea of no taxation without consent can be indirectly traced to Chapter 12—although both of those [attributions] require some distortion of history.

“There are a few other ideas such as proportionality of punishment—perhaps the forerunner of our ‘cruel and unusual punishment’—[that] can possibly traced back to Magna Carta.”

 Klerman reflects that “one way of thinking about Magna Carta is that it was originally a charter of good feudal customs—not really of individual rights—but it became interpreted as a charter of individual rights….”

He acknowledges that “[o]ver the last 800 years, Magna Carta has become a symbol and argument for the idea that governmental power is limited by law,” but cautions that the significance of the document to our society should not be exaggerated.

“Relatively few modern rights can be traced with any accuracy to Magna Carta,” he says, adding:

“As important as Magna Carta might be, it’s important to remember that most right that we cherish today, whether they’re First Amendment rights or rights against discrimination,…reflect later political and social struggles.”

Others see the Magna Carta as a starting point.

They see tenets contained in that document as having developed, as having been given broader application.

Remarks by Chief Justice John Roberts last year at the American Bar Association Convention in Boston include this observation:

“When we talk about Magna Carta today, we are not celebrating antiquated relics of a time long past. Instead we are referring to a small collection of provisions that express kernels of transcendent significance.”

He says that “some of Magna Carta’s language speaks beyond its times.”

Chapter 39, the chief justice says, “is instantly recognizable as a seed for our modern concept of due process” and Chapters 12 and 14 “contain a hint of the principle of separation of powers.”

Attorney/author Ben W. Palmer sets forth in a 1946 article in the American Bar Association Journal, “Edward Coke, Champion of Liberty”:

“The immemorial rights of Englishmen upon which American pre-Revolutionary leaders rested their case in their polemical quarrel with the mother country which preceded the appeal to arms and the unalienable rights referred to in the Declaration and guaranteed in the Constitution and bills of right, were claimed largely on the authority of Coke. So also to his reading of Magna Carta are to be traced the due process clauses of the Fifth and Fourteenth Amendments. The fact that modern scholarship has detected errors in his reading of Magna Carta does not diminish the historical importance of his influence on legal and political thought. In fact, it is all the more a tribute lo his persuasive ability in the field of creative myth.”

Max Radin, a professor at the University of California at Berkeley’s Boalt Hall, in his 1947 Harvard Law Review article, “The Myth of the Magna Carta” challenges the view that prior to the 17th Century, “the Charter was merely an ancient statute not much in people’s minds,” continuing:

“What we may call the ‘new’ doctrine, then, is that Magna Carta is an ancient fetish, a sort of medicine bag, pulled out of the dust of the record-room by Coke and made into the symbol of the struggle against arbitrary power; and that the true effect of the Charter, if any, had been merely the hardening of the privileges of some hundred petty kings.”

While Klerman’s discussion creates just such an impression of the Magna Carta having been, from the time the pope revoked it to the time it became an object of Coke’s embellishments, devoid of vitality or notice, Radin points to the reissuances of it, and its codification. Radin writes:

“The Runnymede Charter was a very special document which, had it been followed, would have reduced England to a feudal oligarchy. It was reissued two years later with many modifications; two more reissues followed, and on February 11, in the ninth year of Henry III, 1224-25, the Charter took the form in which it now appears, a form in which it was fixed by the later enactment that really gave it what we should call statutory force, the Inspeximus of Edward I, promulgated in 1297.”

So far as it merely gathering dust, Radin argues:

“For what it is worth, we may mention two facts which tend to show an interest in the Charter that extended beyond the group consisting of lawyers and office-holders. In the first place, it is to be noted that several boroughs purchased copies of it. In the second place, in 1535, Ferrers translated the Charter into English and his translation was published together with a translation of the ‘Old Statutes.’ This work must have had in mind a larger audience than that of lawyers. The lawyers had no real need of it. The Charter could not be cited in English in court. The chief language of the lawyers in all legal matters was French until about 1670. Their other language was medieval Latin, which was an absolute requisite in practice. There could have been no demand in the profession for an English version of the Charter.”

Radin declares that “since at least 1297,” the Magna Carta “has been something more than a statute; it has been an assertion of the existence of fundamental rights of free men, however differently they might have been listed at different periods.”

Next: A look (inspired by Klerman’s remarks) at the origins of the jury system.

A COUPLE ASIDES: I find interesting Radin’s mention that the title “Magna Carta” was not used from the start. Thirteenth Century cleric and jurist Henry of Bracton, “both in the Treatise and the Note Book calls it simply carta libertatum or libertatis” (charter of liberties), the author says.

“But it is already called ‘Magna Carta’ in a number of writs issued in 1253 and 1262,” he notes, telling of a sheriff who was held to answer for improperly summoning a person “contrary to the liberties of the great Charter.” Radin finds that “it was in the middle of the thirteenth century…that the words ‘Magna Carta’ became a name instead of a description.”

Radin was nominated by Gov. Culbert Olson to the California Supreme Court, but rejected by what was then the Commission on Judicial Qualifications (now the Commission on Judicial Appointments). Attorney General Earl Warren (later governor and U.S. chief justice) viewed him as too liberal, and Warren persuaded the senior Court of Appeal presiding justice to join him in voting “no.”

It was reportedly on Radin’s recommendation that Olson appointed Roger Traynor, who later became California’s chief justice.


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