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, which is still on the statute book, is in effect a succinct criticism of the misuse of their powers by Henry II and his sons Richard I and John, and an attempt to subject those powers to legal constraints. It was specifically applied only to free men, whose property and rights it was intended to protect against the actions of the king, it was not drawn up to defend serfs against mistreatment by their lords. The English crown, which by contemporary standards had long been unusually powerful, had by around 1200 become able to exercise effective authority throughout the whole country. It acknowledged that law was entitled to supremacy over power, but in practice all too often ignored this principle, being moved instead by will – in contemporary thought the polar opposite of law – or simply by malevolence or anger (these last were often entered as grounds for action in the government’s own records, and chroniclers, too, recorded numerous outbursts of royal rage, one of which was notoriously the cause of the murder of Archbishop Thomas Becket in 1170). Government was still essentially personal, and as a result it continued to reflect the domineering personalities of kings who expected obedience, were easily moved to wrath, and were in a position to impose themselves directly on every level of free society.
Clause 39 lists the methods which King John, even more than his two predecessors, used against those whom he wished to discipline or coerce, or whose money he wished to extract. All were potentially lawful processes, means, indeed, of righting wrong or punishing crime when used in proper form, but acts of oppression when their primary purpose was to serve the interests, or just the pleasure, of the monarch. The one most frequently employed was disseisin, the dispossession of landed property, which constituted a threat to the status as well as to the means of its victims, and must have been all the more feared, and resented, because when the king’s agents seized a man or woman’s estates they often took everything on it, goods and crops, as well. In some cases disseisin could have been justified as the appropriate punishment for a serious offence, but in others the recorded grounds for it appear to have been slight – failures to pay debts on time, for instance, or trivial breaches of forest law. In many cases no reason was given at all, suggesting that disseisin had become the government’s first recourse against offenders, whatever they had done. The other actions listed were, as recorded, employed less often than disseisin, but their effects could be no less devastating, resulting in the loss of personal freedom for a person imprisoned, of all rights and property for anybody outlawed, of life itself for those executed (probably what was meant by `ruined’). All entailed physical violence, of a kind with which Jews and members of the clergy were threatened, and which the former certainly suffered.
John’s government was certainly fertile in menaces, issuing commands in language which was clearly intended to intimidate as well as to enforce obedience, and acting so often on impulse that it was apt to become confused about its own intentions and the reasons for its own deeds, which might have to be corrected afterwards. The response to this style of government, so relentlessly, even recklessly, violent, was a growing demand for the safeguards provided by due process of law, one voiced in the months before Magna Carta by Archbishop Stephen Langton and even by the pope, and no doubt urgently sought by the rebellious barons and their followers, many of whom had suffered from the various forms of oppression listed in Clause 39. What they sought was the subjection of royal power to the rule of law in terms with which they were familiar. What they also helped to achieve, of no less importance, was the separation of law from government, of which it had hitherto been little more than one component among many.
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.