Nullus liber homo capiatur, vel imprisonetur, aut dissaisiatur, aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum vel per legem terrae.
No free man is to be arrested, or imprisoned, or disseised, or outlawed, or exiled, or in any other way ruined, nor will we go against him or send against him, except by the lawful judgment of his peers or by the law of the land.
Clause 39, one of only four from the version of Magna Carta issued in 1215 still to be found upon the statute book, was intended to place constraints upon the crown’s executive powers by subjecting them to law, as that was determined either by judgment of peers – that is, by a man’s social equals – or by the law of land, a phrase covering alternative methods of proof like the ordeal or trial by battle. Its benefits were specifically restricted to the free, it was not intended for serfs. Medieval thought contrasted law with will, but the two were not easily separated, especially under powerful, and also unpredictable, rulers like Henry II, Richard I and John. The actions of those kings were many times recorded as arising from their anger or malevolence, and their victims were often among the great men of the realm (the murder of Archbishop Thomas Becket in 1170 is the best-known example), but could also be found at much lower social levels.
The coercive powers at the crown’s disposal were great, and when due process was followed their exercise was perfectly lawful. King John made full use of them, to raise money, to discipline and to punish, but all too often without regard to legality. The most effective weapon in his armoury, and the one he most often used, was disseisin, deprivation of land, which, moreover, was often accompanied by the removal of everything on a sequestrated property. The evidence shows that it was used against free men and women of all ranks and for all kinds of offences, serious and insignificant alike. Slowness in paying a debt, an infringement of forest law, simply provoking the king’s anger – all could lead to dispossession. Supplementing disseisin were the other forms of coercion listed by Clause 39, ranging from arrest and imprisonment to physical destruction (probably comprehended within the term `ruined’). All were deployed at the will of the king, for instance to extract money from English Jews or to browbeat the clergy during the Interdict. A government violent in its actions was no less violent in its use of words, and indeed was sometimes so indiscriminate in its measures that it lost track of its reasons for taking them, and had to find out what they were, or to correct actions carried out by mistake. The sheer extent of the power at the king’s disposal made injustice easy for him to inflict, but hard for those who suffered from it to remedy. There are signs that demand for legal remedy was growing even before Magna Carta imposed one, while the rebels of 1215/16 included many who had suffered from the kinds of wrongs which Clause 39 aimed to prevent. Its solution, an insistence on the observance of due process before any kind of coercive action was taken, constituted an important step towards the separation of law from government.
Papal Letters of 19 March (Features of the Month)
Clause 60 (The 1215 Magna Carta)
John grants freedom of election (The Itinerary of King John)
'by the law of our realm or by judgment of their peers' (The Itinerary of King John)
Please note: commentaries are presently available only for clauses marked with *; more commentary to be added in due course.