The Magna
Carta

The American founding did not begin in 1776. The idea that a written document could place enforceable limits on the power of a government, that the king himself was subject to the law, had been argued, lost, recovered, and argued again for five hundred years before Jefferson picked up a pen. The Magna Carta is the beginning of that argument. The record starts here.

By the spring of 1215, King John of England had spent fifteen years exhausting his barons. He had taxed them without limit, imprisoned men without trial, seized property without judgment, and demanded military service beyond any feudal obligation they recognized as legitimate. The barons who confronted him at Runnymede were not reformers with an abstract theory of liberty. They were feudal lords who had decided the king had broken the rules governing the relationship between a lord and his men, and they wanted those rules written down and sealed.

The document they produced, originally called the Articles of the Barons and later the Great Charter, Magna Carta, ran to 63 clauses covering a range of feudal grievances: inheritance rights, debt, weights and measures, the conduct of judges and sheriffs, the return of hostages, and the freedom of the English Church. Most of it addressed disputes specific to the feudal economy of 13th-century England and has no direct relevance to anything that followed. But buried in the middle of the document were two clauses that proved to be of a different kind entirely.

Clause 39 contains the principle that no one, including the king, could imprison, exile, or deprive a free man of his property except through a recognized legal process carried out by his peers. Clause 40 establishes that justice cannot be bought or withheld. Together, these two sentences are the first written statement in the English legal tradition of what would eventually be called due process of law and the right to trial by jury.

Clause 12 addressed taxation: no tax, called a scutage or aid, could be levied on the kingdom without the common counsel of the realm. That principle, reduced to a phrase by the time of the American Revolution, was no taxation without representation. It is directly traceable to this clause, in this document, sealed at Runnymede in June 1215.

The Magna Carta did not immediately transform English law. Pope Innocent III annulled it within months of its sealing, calling it shameful, demeaning, illegal, and unjust. King John died the following year. The charter was reissued multiple times under subsequent kings, 1216, 1217, 1225, each time with modifications. The 1225 version, issued by Henry III, became the definitive text and was confirmed by Parliament repeatedly over the following centuries.

For three hundred years the Magna Carta functioned as a legal reference point, cited in courts, confirmed by kings, gradually absorbed into the common law. It was not a celebrated liberty document in the modern sense. It was a feudal charter, and most of its clauses concerned feudal arrangements that became increasingly irrelevant as the medieval economy changed. The two clauses that would matter, 39 and 40, survived because English courts kept returning to them whenever the question of arbitrary imprisonment arose.

The decisive moment in the document's transformation came in 1628, when Sir Edward Coke, the most influential English jurist of his era, used the Magna Carta as the legal foundation for the Petition of Right, a parliamentary challenge to the forced loans and arbitrary imprisonments of Charles I. Coke argued that clauses 39 and 40 established an ancient, unbroken English right to due process that the Crown could not override. His interpretation was contested by other lawyers and was not historically precise, the 1215 document had concerned barons, not all free men, in any modern sense. But Coke's reading became the standard. It is the Magna Carta the founders knew.

The founders read English law through two primary lenses: Coke's Institutes of the Lawes of England, published between 1628 and 1644, and William Blackstone's Commentaries on the Laws of England, published 1765–1769. Both are pre-1928 public domain and both carry extended treatment of the Magna Carta. Jefferson owned Coke. John Adams cited Blackstone extensively. James Wilson lectured on both at the College of Philadelphia. The Magna Carta the founders cited was Coke's Magna Carta, an idealized account of ancient English liberties, rather than the specific feudal document sealed at Runnymede.

In the spring of 1786, Thomas Jefferson, then serving as American minister to France, crossed the English Channel for his only visit to London. With John and Abigail Adams, he toured the British Museum and saw a copy of the Magna Carta. Jefferson had been citing the document in legal arguments for over a decade. Seeing the original, he wrote nothing dramatic about the experience. He didn't need to. The document was already part of how he thought about the problem of power.

When colonial lawyers began building the legal case against Parliamentary taxation in the 1760s, the Magna Carta was their primary English precedent. James Otis cited it in his 1761 argument against writs of assistance, general search warrants, in the Boston courts. John Adams, who watched the argument, later called it the moment the Revolution began. Patrick Henry cited it in the Parson's Cause in 1763. The Massachusetts Circular Letter of 1768, drafted by Samuel Adams, cited the principle of no taxation without consent directly back to Magna Carta clause 12.

The colonial charters themselves carried Magna Carta's language. The Massachusetts Bay Charter of 1629, the Maryland Charter of 1632, and the Carolina Charters of 1663 and 1665 all included explicit guarantees that colonists would enjoy the rights and liberties of English subjects, which, under Coke's interpretation, meant the rights guaranteed by Magna Carta. The colonists were not invoking a foreign document. They were invoking what they believed to be their own English inheritance.

The Virginia Declaration of Rights, drafted by George Mason in May 1776, drew directly on Magna Carta clause 39 in Section 8: that no man could be deprived of his liberty except by the law of the land or the judgment of his peers. The Declaration of Independence listed the quartering of soldiers, the denial of jury trials, and taxation without representation among its charges against the Crown, each one traceable to a Magna Carta principle. The document signed at Runnymede in 1215 is in the background of every sentence Jefferson wrote in Philadelphia in 1776.

On June 8, 1789, James Madison stood in the House of Representatives and introduced his proposed amendments to the Constitution. Among them was the clause that would become the 5th Amendment: that no person shall be deprived of life, liberty, or property without due process of law. Madison's phrase "due process" was new at the federal level, every prior American document had used the Magna Carta's own language, "law of the land." Madison's substitution was deliberate and precise. He was translating the medieval English phrase into a constitutional standard that federal courts could apply uniformly.

The phrase "due process of law" had itself originated as a translation of the Magna Carta's Latin. In 1354, during the reign of Edward III, Parliament restated clause 39 using the English phrase "due process of law" for the first time. That phrase traveled from 14th-century England through Coke's Institutes, through Blackstone's Commentaries, through the colonial charters, through every state bill of rights, and arrived in Madison's floor speech on June 8, 1789. The 5th Amendment ratified in 1791 carries language whose direct lineage runs to a field in England in 1215.

The 14th Amendment in 1868 extended the same due process guarantee against the states. The Supreme Court's interpretation of what due process requires has been contested in every generation since. The argument that began at Runnymede, what limits does law place on the power of government over the individual, has not ended. It has been running for eight hundred years. The Magna Carta is where the record starts.