Our due process debt to Magna Carta.

Author:Klingen, Leonard W.

June 15, 2015, marked the 800th anniversary of Magna Carta, (1) a document whose foundational influence on the freedoms enjoyed under our Anglo-American systems of government and jurisprudence cannot be overstated.

The reason for such unalloyed praise is quite simple. Magna Carta is the first English document that codified limitations on the arbitrary power of government. Much like the United States' Constitution that followed it 573 years later, Magna Carta imposes restrictions on governmental action but demands nothing of the nation's citizens in return. Contrast this, for example, with the admonitions of those Ten Commandments that directly regulate the thoughts (2) and actions (3) of the citizenry, or with Justinian I's Corpus Juris Civilis, which, while providing certain individual protections, placed few, if any, restraints upon governmental action.

Although universal obedience to the law was not unique to 13th century England, (4) Magna Carta was the first codification of such a principle, explicitly stating that all persons, (5) including for the first time the king, (6) were subject to the law of the land. It is also the first written statement of the right to due process and habeas corpus. Magna Carta's Clauses 39 and 40 (7) state that:

39. No free-man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land. 40. To no one will we sell, to no one deny or delay right or justice. (8)

King Edward III signed the Liberty of Subject Act 139 years after Runnymede, fixing the concepts of Clauses 39 and 40 into the common law and, in updating the translation from Latin, gave us that vital expression, "due process of the law." The statute, cited today as 28 Edw. 3, states that: "No man of what estate or condition that he be, shall be put out of land or tenement, nor taken, nor imprisoned, nor disinherited, nor put to death, without being brought in answer by due process of the law."

In stark contrast to its predecessors, (9) Magna Carta did not arise from the noble intentions of an enlightened ruler, but was imposed upon the government by the country's exasperated populace. A group of rebellious barons, tired of King John's repeated demands for scutage (10) and his inhumane treatment of prisoners, took up arms against the cruel and petty ruler (11) under the banner of the "Army of God." After taking London in April 1215, the baronial army famously met John at Runnymede on June 15 and presented him with a mediation agreement drafted by Stephen Langton, Archbishop of Canterbury, (12) that promised to return London to the Crown in exchange for the king's signature on and adherence to the agreement. Although the rebel movement was soon extinguished, the document itself was not entirely forgotten and was revived several times during the 13th century and beyond.

Most of Magna Carta's clauses have been repealed or rendered moot with the passage of time, (13) but British law still retains the three that grant freedom of the English church, (14) its capital city, (15) and its citizenry. (16) Likewise, the freedoms guaranteed by the U.S. Constitution rely in part on a modified version of Clause 1, (17) and on Clauses 39 and 40. These are incorporated into the body of the Constitution itself (18) and its amendments, (19) and are among the most fundamental of our societal principles.

We live in a nation "with solid pavement under [our] feet, surrounded by kind neighbors," (20) where citizens are rarely if ever "disappeared" and "dissidents" are those across the proverbial aisle. In such a society, it is difficult, if not impossible, to appreciate the profound and far-reaching consequences of the rights that have come down to us from the field at Runnymede. Chief among those rights are the prohibition against the arbitrary taking of life, liberty, or property, and the prohibition against arbitrary incarceration, known to us respectively as due process and habeas corpus.

The Due Process Clause states that "No person shall ... be deprived of life, liberty, or property, without due process of law." (21) It is contained in the Fifth Amendment to the Constitution as a part of the Bill of Rights and "like its forebear in the Magna Carta ... was intended to secure the individual from the arbitrary exercise of the powers of government." (22) In crafting the Due Process Clause, the framers were strongly influenced by Magna Carta's Clause 39, so much so that Justice Story noted that the clause "is but an enlargement of the language of magna charta." (23) Similarly, Judge Dillon remarked in his commentary on the constitutional guaranties of the Fifth and 14th amendments that "[t]his was not new language, or language of uncertain meaning. It was taken purposely from Magna Carta. It was language [that] had stood for more than five centuries as the classic expression and as the recognized bulwark of the ancient and inherited rights of Englishmen to be secure in their personal liberty and in their possessions." (24)

Notwithstanding their reverence for the original, the framers reduced Clause 39's longer phrasing from the cumbersome "seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so," to the much more memorable "deprived of life, liberty, or property." It is a testament to their...

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