What is the most important sentence to have ever been written in a legal instrument?
“No free man shall be arrested or imprisoned or disseised or outlawed or exiled or in any way victimized, neither will we attack him or send anyone to attack him, except by the lawful judgment of his peers or by the law of the land.”
Clause 39 is credited with setting out rule of law, meaning that the King (or government) cannot arbitrarily rule, and instead the nation is to be governed by law. King John was known for raising taxes sky high and entering battles that his country did not wish to fight, which explains why a peace treaty would establish such a rule.
Clause 39 contains both procedural and substantive elements. For a man to be penalized he must first be found guilty of an offence which is set out by law; and guilt may only be found after a genuine trial rather than being handed out at the King’s whim . The phrase “law of the land” is an early conception of “due process of law” which we are entitled to today .
The Supreme Court of Canada’s Chief Justice McLachlin referenced the Magna Carta in United States of America v. Ferras, commenting that “[i]t is an ancient and venerable principle that no person shall lose his or her liberty without due process according to the law” . Chief Justice McLachlin is not alone in proclaiming the importance of the Magna Carta, and specifically Clause 39. Former Speaker of the Canadian Senate, Noël Kinsella, has stated that the Magna Carta became “a symbol for justice and the protection of basic rights around the world” and “Chapter 39 came to be associated with habeas corpus and the principle that any person under arrest must be brought before a judge or into court to determine the legality of his or her detention” .
“Judgement of his peers” is the first utterance suggesting an entitlement by an accused person to a trial by jury, so Clause 39 is also commonly acknowledged for the concept. In Canada, an accused person has the right to a trial by jury for any offence which carries a possible penalty of 5 or more years. See yesterday's post for more information on juries!
Protection from government tyranny, security against unlawful detention, the concept of jury trials, and the guarantee of due process all originate from Clause 39, which is why it is Ms. Magna Carta’s favorite part of the historical document. Which clause is your favorite? Let us know in the comment section below!
 A.E. Dick Howard, Magna Carta: Text & Commentary, (Charlottesville: University of Virginia Press, 1998), at 14.
 United States of America v. Ferras, 2006 SCC 33 at para 19.