The Magna Carta dealt with a variety of issues in its clauses. There were a few of them that were very specific, dealing with problems that only mattered to those barons at that time. Clause 33 require that all fish‐​weirs, or barriers that were designed to trap fish in a river, to be removed from the Thames and from throughout England. Clause 50 demanded that certain men be removed from their offices in England. Clauses 58 and 59 dealt with the return of hostages to Wales and Scotland respectively. 10

Another type of clause in the Magna Carta were those that dealt with specific policies. One prime example of this is Clause 17, which established a permanent home for the common pleas court. This clause meant that the barons would no longer have to chase the king’s court around England in order to find justice. Clause 35, set a standard of weights and measures for wine, cloth, ale, and grain. 11

The most important clauses were those that led to bigger principles, the type of principles of which Churchill wrote. In Clauses 12 and 14 the barons extracted a promise that extraordinary feudal aids could only be granted by the common counsel of the kingdom and then set a procedure for calling together a council for that purpose. Similarly, Clause 16 guaranteed that no one should be forced to give greater service than that required by their feudal oath. In Clauses 28, 30, and 31 the king’s officers could not take grain or chattel, horses or carts, or wood for castle repair, without either paying for them or gaining the owner’s permission. 12

There were several clauses in this category that deal with justice and would be far‐​reaching. Clauses 20 and 21 specified that a free man could only be amerced, or fined, according to the degree of the crime committed, and only on the oaths of “good men from the neighbourhood,” and that earls and barons could only be amerced by other nobles. Clause 38 forbade the king’s officers from putting any man through an ordeal without trustworthy witnesses. Clause 39 promised that “no free man shall be captured or imprisoned or disseised [sic] or outlawed or exiled or in any way destroyed…except by the lawful judgment of his peers or by the law of the land.” The king promised in Clause 40 that he would not sell justice or deny justice to anyone. 13

From these few examples it is possible to see that the Magna Carta was, in many ways, foundational for future English and later American constitutional development. The document was reissued several times during the thirteenth and fourteenth centuries, to reinforce the arrangement it made. When it was reissued in 1225, for example, Clause 37 made the nature of the political bargain clear by showing that it was a promise from the king to maintain the customs and liberties of the people and to remedy grievances in exchange for tax revenue. 14

The nature of this agreement, and the specific liberties and rights mentioned in the Magna Carta over the various versions were the root of arguments made by later legal experts seeking to make reforms on the British form of government. These legal experts, such as Sir Edward Coke, saw the Magna Carta as a bulwark against tyranny. To them it had saved England by establishing basic civil and political rights, and that it had placed the king himself under the law. They spoke of rights such as parliamentary consent for taxation, due process of the law, and trial by jury. Coke, speaking before the House of Commons in 1619, condemned Stuart attempts to tax without Parliament as an abuse of royal government and a contravention of the clauses of Magna Carta. 15

William Blackstone also viewed the Magna Carta as “the principle bulwark of English liberties.” Even the elder William Pitt, revered in the colonies as a great Prime Minister and friend to the colonies, referred to the Magna Carta as the “Bible of the Constitution.” These were men who were highly influential on the colonial intellectuals. Coke was an important part of the standard legal education, and legal scholars throughout the colonies frequently cited both Coke and Blackstone in their writings about the common law. 16

One could argue that Coke and Blackstone, among others, were merely using the Magna Carta to further their own political reforms and that it did not do everything they purported. Clauses 12 and 14, which forbid the demanding of scutage without common counsel and then set a procedure for calling the barons for that counsel, were cited as the requirement that the king must ask the representatives of the people for taxes, and as the beginning of Parliament. These clauses, however, merely set a procedure by which the king could summon his barons and ask them for extraordinary feudal aids, and, therefore, was not really the beginning of Parliament. 17 While Parliament as we know it today was not truly established until the Model Parliament of 1295, 18 there were certainly many in the seventeenth century who saw Magna Carta as its inspiration, such as Coke and Blackstone.

Whether or not Blackstone and Coke were merely using these arguments to further reforms, or they believed that they were advancing arguments based on the history of the Magna Carta, they did sway others that certain rights were established by the document. Rights such as trial by jury and taxation through representation would find their way into the political lexicography, even forming the basis of the American Revolution.

Clauses 20, 21, 38 and 39 can easily be interpreted as establishing a right to trial by jury. These clauses make it clear that free men could not be punished for crimes without the testimony of good men from their neighborhood, or from other barons if they were members of the nobility. In fact, these clauses could be merely reinforcing more ancient customs. Under William I the royal court had responsibility to try all cases where his vassals had a right to trial by his peers. This court authority was also extended to the lesser courts for smaller claims as well. Before the Norman invasion, the Anglo‐​Saxon court system included plaintiffs making oaths accusing a defendant of an offense, the plaintiff supporting that claim with oaths from local men, the defendant making a counter‐​claim of innocence through an oath, and the defendant supporting that claim with oaths from local men as well. 19 These clauses in Magna Carta might have been a reminder to the king that a defendant could not be found guilty without these oaths.

Likewise, Clauses 12 and 14 have often been interpreted as the establishment of Parliament as they demand that the king must ask a council of his barons for extraordinary feudal aid. While one could suggest that this is a requirement that the king get consent from representatives of his subjects for taxes, this would be incorrect. Feudal oaths taken by the barons already promised certain obligations to the king and these clauses, along with Clause 16, merely reinforce to the king that he can not take more simply by demanding it.

These misinterpretations of the clauses of Magna Carta can be seen in Thomas Jefferson’s writing of the Declaration of Independence. Jefferson argued that George III obstructed the administration of justice (Clause 40), imposed taxes on the colonists without their consent (Clauses 12,14), and deprived them of trial by jury. 20

The real significance of Magna Carta, however, is in general theories. For one, the barons were successful in forcing the king to grant a written charter of rights, proving that kings could be brought to terms. Another important result of this document was that the king was not only the man who made the laws, but was also under the law, an idea that Jefferson would revisit. As the Magna Carta was reissued over the years it became an assurance of good faith, that the king would respect certain rights contained therein, and, in return, he could expect loyalty from his subjects. Finally, the original issue of Magna Carta contained a security clause, Clause 61, that stated that if the king violated the terms of the charter then the barons could revolt and force him to comply. 21

These principles became an important influence for the Declaration of Independence. Thomas Jefferson had previously argued that “his Majesty…is no more than the chief officer of the people, appointed by the laws, and circumscribed with definite powers.” 22 Thus, is was a logical progression for Jefferson to suggest that after violating so many of the rights of the colonists, the colonists had a right to choose a new chief officer. He stated this in the Declaration by stating that “a Prince, whose Character is thus marked by every act which may define a Tyrant, is unfit to be the Ruler of a free People”

The Declaration of Independence was the colonists’ opportunity to explain why they had a right to leave the British Empire. Jefferson argued that George III, like John several centuries earlier, had violated the trust of the people that he, a chief executive, owed to them. The Declaration could only be seen as justification for revolt because of the barons’ success in forcing John to issue the Magna Carta and the rights contained in that great document.

[1] Jon Meacham, Thomas Jefferson: The Art of Power, New York: Random House, 2012, 29; Joseph J. Ellis, American Creation: Triumphs and Tragedies at the Founding of the Republic, New York: Alfred A. Knopf, 2007, 55.

[2] Winston Churchill, The Great Republic: A History of America, Winston S. Churchill ed, New York: Random House, 1999, 92.

[3] Bryce Lyon, Constitutional and Legal History of Medieval England, New York: Harper & Row, 1960, 126, 228.

[4] Ibid., 230, 312.

[5] Ibid., 234, 312; Dan Jones, Magna Carta: The Birth of Liberty . New York: Viking, 2015, 23.

[6] Jones, 27.

[7] Ibid., 37, 50; Lyon, 313.

[8] Lyon, 241.

[9] Jones, 76, 104.

[10] Carl Stephenson and Fredrick George Marcham, Sources of English Constitutional History: a selection of documents from AD 600 to the present, New York: Harper & Brothers, 1937, 120, 123–4.

[11] Ibid., 118, 120.

[12] Ibid., 117–8, 120.

[13] Ibid., 119–121.

[14] Jones, 185.

[15] Jones, 192; Lyon, 310.

[16] Lyon, 311. David McCullough, John Adams, New York: Simon & Schuster, 2001, 43; Bernard Bailyn, The Ideological Origins of the American Revolution, Cambridge, MA: Belknap Press of Harvard University Press, 1967, 30–31. The colonists would break with Blackstone over his views on members of Parliament representing the people of the whole kingdom rather than only those who had directly elected each of them.

[17] Lyon, 322.

[18] Maurice Powicke, Medieval England: 1066–1495, London: Oxford University Press, 1969, 96–97.

[19] Lyon, 100–101, 188–195.

[20] Jones, 194.

[21] Lyon, 323; Jones 140–41, 184.

[22] Thomas Jefferson, “A Summary View of the Rights of British North America,” The American Revolution: First‐​Person Accounts by the Men Who Shaped Our Nation, T.J. Stiles, ed, New York: Perigee, 1999, 47.