At the beginning of the seventeenth century, English lawyers and scholars of the law began to take a new interest in Magna Carta. As a result of historical research by sixteenth-century humanists, a new picture of the English legal tradition emerged that cast Magna Carta as an affirmation of principles of individual liberty that were recognized and upheld in England from earliest antiquity.
This interpretation of Magna Carta led prominent lawyers of the seventeenth century, such as Sir Edward Coke and John Selden, to give Magna Carta a special status among the statutes that were created in medieval England. Other statutes could be repealed, but Magna Carta was permanent because it enshrined the original liberties that the English people held against the powers of the state. In the legal contests surrounding the conflict between the House of Commons and King Charles I (reigned 1625–1649), the opposition to the crown advanced this reading of Magna Carta to support their demand to limit the king’s prerogative. Their efforts quickly gave rise to a decades-long constitutional challenge to the throne, which concluded in civil war and the execution of King Charles I. Even though by the mid-seventeenth century a new generation of historians was already casting doubt on the historical accuracy of this reading of the document, the idea of Magna Carta as a charter of individual freedoms became a reality with lasting political impact.
England’s Ancient Constitution
William Lambarde was an influential sixteenth-century historian who advanced the popular theory that England had an ancient constitution that preserved fundamental individual liberties from time immemorial. Working from medieval manuscripts, Lambarde demonstrated that the Norman kings were often forced politically to uphold the laws of their predecessors. The laws of the Anglo-Saxon King Edward the Confessor especially, and later those of Henry I, took on an important role as a benchmark for the original liberties of Englishmen. This volume contains Lambarde’s reconstruction of the laws and charters of England’s kings.
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Sir Edward Coke
Sir Edward Coke was a barrister, judge, and politician whose impact on the way Magna Carta has been read cannot be overestimated. After a legal career that included, among other offices, serving as attorney general for Queen Elizabeth I and chief justice of King’s Bench for King James I, Coke joined the House of Commons where he was solicitor general and later speaker of the House of Commons. His major work, The Institutes of the Lawes of England, published in four parts from 1628 to 1644, was one of the principal sources of the common law and the standard text for students of the law on both sides of the Atlantic for more than a century.
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A Teaching Text for Liberty
Sir Edward Coke’s The Second Part of the Institutes contains a detailed commentary on Magna Carta that casts the charter as the central legal safeguard of individual liberties against arbitrary action by the king. Coke understood Magna Carta, not as an assertion of new rights, but as a declaration of rights that the English people held since antiquity. On display is Thomas Jefferson’s own copy of Coke’s Institutes. Jefferson’s initials can be seen at the bottom right of the page.
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Creating Magna Carta in Conference
In 1627, King Charles I and the House of Commons debated whether a king had the right to imprison his subjects without judicial procedure and without leveling specific charges, a question that arose in response to the Case of the Five Knights. Charles had adopted a policy of forced loans when Parliament refused to fund the Thirty Years War and imprisoned the knights, who would not lend money to the crown. In this pamphlet, Sir Edward Coke and other members of Parliament formulated the interpretation of Magna Carta used to object to the imprisonment of the knights and to claim the inviolability of a subject’s right to due process of law.
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The Petition of Right
In 1628, opponents of King Charles I in the House of Commons resolved to create a petition of right to oppose the extraordinary means used by the king to raise funds without Parliament’s approval. Sir Edward Coke chaired the committee that drafted the petition. It passed both houses of Parliament in late May of 1628 and King Charles ratified it on June 7 of that year. The Petition of Right of 1628, which became one of England’s most important sources of constitutional law, reaffirmed the liberties guaranteed in Magna Carta, prohibited taxation outside of Parliament and extra-legal imprisonment, and guaranteed the privilege of the writ of habeas corpus.
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A Free-Born Subject’s Inheritance
Throughout the seventeenth and eighteenth centuries, a series of laws and enactments became identified with the idea of preserving England’s ancient liberties from royal overreach. These included Magna Carta, the Petition of Right, and the Habeas Corpus Act of 1679, among others. Henry Care created and broadly circulated this pamphlet that contained these enactments, along with concise commentary drawn from Coke’s Institutes. Care’s pamphlet, which appeared in several American editions throughout the eighteenth century, was exceedingly popular in North America. This edition, from the printing press of Benjamin Franklin’s older brother James, may have been typeset by Benjamin Franklin.
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English Bill of Rights
At the end of the revolution that removed King James II from the English throne, Parliament enacted a statute that placed limits on the powers of the monarchy and prescribed basic protections of the liberties of the subject. The Bill of Rights of 1689 laid out several provisions that would later be adapted in the U.S. Bill of Rights, among them the right to bear arms, freedom of speech for members of Parliament, trial by jury, and protection from disproportionate fines and cruel and unusual punishment. It also reemphasized what had become a core principle of English liberty and the basis of parliamentary government —no taxation without representation, which had appeared in the Petition of Right and could be traced to Magna Carta.
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Blackstone’s Magna Carta
William Blackstone was a prominent judge, jurist, and politician during the mid-eighteenth century and, as a professor at Oxford, was the first to lecture on the subject of English law at any university. His encyclopedic but clearly written treatise on common law, Commentaries on the Laws of England, replaced Coke’s Institutes as the principal textbook for students of law. In 1759, Blackstone produced the first modern critical edition of the many versions of Magna Carta that were issued between 1215 and 1297.
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