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W&M Law's McSweeney explores Magna Carta

  • Magna Carta
    Magna Carta  Professor McSweeney is a contributor to "Magna Carta and the Rule of Law," a publication of the American Bar Association.  Photo by David F. Morrill
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Institute of Bill of Rights Law also to host 2016 conference devoted to the historic document

June 2015 will mark the 800th anniversary of Magna Carta, one of history's most influential and least understood documents. As one of the earliest attempts to define the rights of a king's subjects, Magna Carta is celebrated as a precursor to English constitutional law and the Bill of Rights.  But William & Mary law professor Thomas McSweeney argues that its historical importance is mainly due to misinterpretations and reinterpretations throughout the centuries.

"Magna Carta is a text that we've thought of as foundational since the 17th century, but its authors didn't intend to write a foundational text of the common law," he said.

Magna Carta, 1225 textMcSweeney, who specializes in the early history of the common law, began exploring Magna Carta in greater detail when the American Bar Association asked him to contribute his expertise to its anniversary publication, "Magna Carta and the Rule of Law." Drawing on his research of legal trends in 13th-century England, McSweeney explored Roman and canon law's influence on the document in his piece "Magna Carta, Civil Law, and Canon Law."

While examining the document's origins as a 13th-century peace treaty between King John and a group of rebellious barons, McSweeney began to question how Magna Carta's historical significance grew beyond its original narrow purpose.

"The piece really made me consider whether we should think about Magna Carta as a legal text in that period at all, as opposed to a list of grievances that a group of barons had against a particular king," said McSweeney. "It's filled with minor complaints, like removing fish weirs from the Thames and requiring one measure of wine throughout the country."

He attributes much of Magna Carta's influence to later misinterpretations of the text and misunderstandings about its historical context. For the Library of Congress' upcoming anniversary volume, he examined one of the most common misconceptions, which credits Magna Carta with establishing the right to a jury trial.

While Magna Carta mentions judgment by one's peers, McSweeney argues in "Magna Carta and the Right to Trial by Jury" that this clause actually refers to a common 13th-century practice in which a vassal would be tried by his fellow vassals to determine what he would need to do to prove his case. They determined whether the litigant vassal would have to make an oath, fight a judicial duel, or undergo an ordeal, such as carrying a hot iron; they did not actually decide a subject's guilt or innocence.

Centuries afterwards, a prominent legal author, Sir Edward Coke, interpreted this chapter of Magna Carta as a reference to the traditional privilege of English lords to be tried by the House of Lords in Parliament. When William Penn, the founder of Pennsylvania, misquoted Coke's work and substituted "jury" for "lords," McSweeney believes the myth of Magna Carta's right to a jury trial may have begun.

To highlight the importance of these later interpretations and revisions, McSweeney will help host a conference at William & Mary in the spring of 2016, the 800th anniversary of the text's first reissue. The conference will be sponsored by the Institute of Bill of Rights Law and will focus on the process of reissuing and revising, as well as the specific edits Magna Carta underwent in the years following its initial publication. These include such substantial revisions as the first use of the phrase "due process of law."  Participating scholars' papers will be published in a special issue of the William & Mary Bill of Rights Journal.

"The original Magna Carta of 1215 was really a failure. King John repudiated it within three months, the pope absolved the king of any obligation to abide by the text, and civil war broke out shortly thereafter," said McSweeney. "The text only became significant because of these reissues, which allowed it to become part of the broader political discourse. This is a significant but understudied aspect of Magna Carta that we're hoping to get people talking about."