Free Greece, Rome, and the Bill of Rights by Susan Ford Wiltshire

who was also a baron. It was as barons rather than subjects that they forced King John to make his constitutional surrender in 1215 at Runnymede.
The situation leading to Magna Carta was one of détente, with different powers balancing each other out. The barons were in a position to destroy King John altogether. The king, while tactically at the disadvantage, knew that all of his castles were garrisoned and ready to fight. Knowing that their balance was temporary, the barons were careful not to overplay their hand. Ultimately they received John's assent to all but one of their forty-nine demands. On June 15 John sealed the articles. For three days they were worked over, apparently with Stephen of Canterbury leading the task, and on Friday, June 19, both parties came together, read the agreement, and sealed the final copies.
Magna Carta is venerated by some as "the greatest constitutional document of all timesthe foundation of freedom of the individual against the arbitrary authority of the despot."
    16 By its own terms, however, it claimed to be a reassertion of ancient customs and a restoration of earlier liberties. Chapter 39, called by Sir Edward Coke "the golden passage" of English law, is the crucial chapter of Magna Carta for the history of due process and the protection of personal freedom. This provision was not original. Rather, it restated an axiom that had received its first clear formulation in the edict of the German Emperor Conrad II in 1037, found in the Liber feudorum , that no soldier could be deprived of his fief except by judgment of

     

page_57
Page 57
his peers: "No freeman shall be captured and imprisoned, or disseized, or outlawed, or exiled, or in any way harmed, except by a lawful tribunal of his peers and by the law of the land."
    17 Judgment by peers had been laid down in a number of documents throughout Europe; in England it appeared in the Laws of Henry I in the form, "Each man is to be judged by his peers in the same neighborhood." 18
Chapter 39 reads as follows:
No freeman shall be taken or imprisoned or disseized of any freehold, or liberties, or free customs, or outlawed, or banished, or in any other way destroyed, nor will we go upon him, nor send upon him, except by the legal judgment of his peers or by the law of the land . To no one will we sell, to no one will we deny or delay right or justice.
Its close relationship to the Fifth Amendment of the U.S. Constitution may be noted by the parallel concepts found in italics:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment by a grand jury, ... nor shall any person ... be deprived of life, liberty, or property, without due process of law .
Chapter 39, which became Chapter 29 in the definitive form of Magna Carta, outlived all the other details of the document. Although it was stated as a universal principle at the time and eventually would become one, in 1215 it applied only to all freementhat is, freeholders entitled to a franchise with tenancy. At the time, this may have amounted to only about 10 percent of the population. Not until four hundred years later would the English Revolution put an end to the feudal tenures Magna Carta was designed to sustain. 19
There was no thought that these rights were ever divinely granted by any divine law or even natural law, not because they were conceded by any higher authority, but because they had gradually come into being and then emerged into the public sphere. "In brief," concludes

     

page_58
Page 58
Ullmann, ''the individual's safety, freedom, and property were declared inviolate, were removed from arbitrary interferencein a thoroughly feudal document."
    20
This article has been seen as the origin of the rule of law and of the principle of due process of law. 21 Nevertheless, these processes were part of the feudal compact rather than the emanation of new theories sprung full-blown from the brain of Zeus or any man. As J. C. Holt