Magna Carta


Ah, Magna Carta. There are few documents which are so symbolic to the English-speaking peoples, and few which are so symbolic to the rise of constitutional government. Yet much of the document no longer exists in law. While the significance of Magna Carta for later generations, and for ourselves, is well appreciated, the significance of the document for contemporaries is often overlooked.

From an international perspective, Magna Carta isn’t really that special. The Concordat of Worms predates Magna Carta by almost a century and served to inspire the modern concept of national sovereignty; the Golden Bull of 1222 issued by King Andrew II of Hungary achieved much of the same as Magna Carta; and in 1356, the ‘Joyous Charter’ in the Low Countries was the result of a century’s accumulation of privileges granted by the Duke of Brabrant to his subjects.

But back to England.  The Magna Carta of 1215 was repudiated by King John in the very same year, with the encouragement of the Pope. In 1216 John died, and his nine-year-old son Henry III became King, defusing the brewing civil war – but more on that in a bit.

Henry’s elderly regent, William Marshall, reissued Magna Carta in Henry’s name within days of John’s death, but omitting the more contentious chapters. In 1225, Henry came of age, and reissued a third, shorter Magna Carta.

Henry died in 1272, a very long reign for the time; long enough to allow Magna Carta become integral to English liberties. Edward I, Henry’s son, reconfirmed Magna Carta again in the Parliament of 1297. It became tradition for every English king to reconfirm Magna Carta, until the final time in 1416 by Henry V. It is the 1225 version which remains in legal force today…

…sort of. It took Parliament 600 years, but starting with the 1828 Offences Against the Person Act, sections of Magna Carta have since been overwritten or repealed.

What’s in force today

The first chapter to go was chapter 26; the last was chapter 30 in 1969. All that remains of Magna Carta is Chapters 1, 9, and 29:

“EDWARD by the Grace of God King of England, Lord of Ireland, and Duke of Guyan, to all Archbishops, Bishops &c.  We have seen the Great Charter of the Lord Henry sometimes King of England, our Father, of the Liberties of England in these words:

HENRY by the Grace of God King of England, Lord of Ireland, Duke of Normandy and Guyan, and Earl of Anjou, to all Archbishops, Bishops, Abbots, Priors, Earls, Barons, Sheriffs, Provosts, Officers, and to all Bailiffs, and other our faithful Subjects, which shall see this present Charter, Greeting: Know Ye, that We, unto the honour of Almighty God, and for the salvation of the souls of our Progenitors and Successors Kings of England, to the advancement of Holy Church and amendment of our Realm, of our meer and free will, have given and granted to all Archbishops, Bishops, Abbots, Priors, Earls, Barons, and to all Freemen of this our Realm, these Liberties following, to be kept in our Kingdom of England for ever.”

Chapter 1, in which the English Church is declared free:

[1]”FIRST, We have granted to God, and by this our present Charter have confirmed, for Us and our Heirs for ever, that the Church of England shall be free, and shall have all her whole Rights and Liberties inviolable. We have granted also, and given to all the Freemen of our Realm, for Us and our Heirs for ever, these Liberties under-written, to have and to hold to them and their Heirs, of Us and our Heirs for ever.”

Chapter 9, in which London is promised its ancient liberties to be governed differently from the rest of England:

[9]”THE City of London shall have all the old Liberties and Customs which it hath been used to have. Moreover We will and grant, that all other Cities, Boroughs, Towns, and the Barons of the Five Ports, and all other Ports, shall have all their Liberties and free Customs.”

And Chapter 29, probably the most famous of all, which promises trial by jury:

[29]”NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right. “

The Inspiration for Magna Carta

So much for modern law. But Magna Carta’s significance goes beyond that of trial by jury. The very creation of the document was an expression of, but also a catalyst for major political change in the Thirteenth Century, which would ultimately result in the foundation of the House of Commons and the early beginnings of parliamentary government.

King John of England became King in 1199 in the midst of a time of great social and economic change. The kings of the Twelfth Century had been able to fight wars and govern the realm largely with the revenue of their own lands, through duties on imports, and through occasional feudal taxes known as ‘scutage’. But since 1180 heavy inflation had caused the revenue from Crown lands to fall to less then half its value by 1230, not exactly helped by the piecemeal portioning off of royal lands to reward royal supporters. Additionally in 1204 King Philip II of France conquered Normandy. All of these factors made the monarch less and less capable of supporting itself and the government.

John sought to offset this by exploiting the royal prerogative to the full, implementing scutage, abusing forest law, and enacting England’s first income tax. The ploy was successful, trebling royal income, but causing deep resentment in the kingdom.

In 1211 Llywelyn the Great of Wales rebelled against John’s overlordship, backed by the Pope who had declared John an excommunicant of the Church (in other words, persona non grata in the afterlife) in 1209 over the appointment of the Archbishop of Canterbury. This crisis caused his campaign to recover Normandy to falter, coming to a crashing end in the Battle of Bouvines in July 1214. In the end,John reconciled himself with the Pope by offering to sell his kingdoms, England and Ireland, to the Pope for 1,000 marks. Understandably, this didn’t go down too well with his subjects.

The subsequent humiliating peace with France caused the Barons to rebel against John’s incompetent government. Llywelyn’s seizure of Shrewsbury in May 1215, joined with Scottish and French armies also invading, entering London in June. This made it clear to John that he had no choice but to come to terms with his barons if he was to save his kingdom. He met his barons at Runnymede, just outside London, on June 15th, and attached his seal to the ‘Articles of the Barons’, later to be solemnised as the Magna Carta.

Magna Carta, taxes, and Parliament

Magna Carta’s original document had 63 articles. Chapters 12 and 14 related to taxation. Article 12 prohibits taxation without ‘common counsel’ and lists the exceptions. ‘Our’ of course relates to the king, as signatory:

[12]”No scutage or aid shall be imposed in our kingdom unless by common counsel of our kingdom, except for ransoming our person, for making our eldest son a knight, and for once marrying our eldest daughter, and for these only a reasonable aid shall be levied. Be it done in like manner concerning aids from the city of London.”

Article 14 then defines what a ‘common counsel’ is – in other words, a gathering of the kingdom’s magnates, bishops and great men:

[14]”And to obtain the common counsel of the kingdom about the assessing of an aid (except in the three cases aforesaid) or of a scutage, we will cause to be summoned the archbishops, bishops, abbots, earls and greater barons, individually by our letters — and, in addition, we will cause to be summoned generally through our sheriffs and bailiffs all those holding of us in chief — for a fixed date, namely, after the expiry of at least forty days, and to a fixed place; and in all letters of such summons we will specify the reason for the summons. And when the summons has thus been made, the business shall proceed on the day appointed, according to the counsel of those present, though not all have come who were summoned.”

The most repugnant chapter from the view of King John, however, was Chapter 61, which sought to constrain his royal power and give the barons the right to rebel against his government if he did not carry out their commands. Here is an abridged version:

[61]”…if we do not correct the transgression, or if we are out of the kingdom, if our justiciar does not correct it, within forty days, reckoning from the time it was brought to our notice or to that of our justiciar if we were out of the kingdom, the aforesaid four barons shall refer that case to the rest of the twenty-five barons and those twenty-five barons together with the community of the whole land shall distrain and distress us in every way they can, namely, by seizing castles, lands, possessions, and in such other ways as they can, saving our person and the persons of our queen and our children, until, in their opinion, amends have been made, and when amends have been made, they shall obey us as they did before.”

As we know, John was compelled to put his seal to Magna Carta to save his crown, but as soon as opportunity allowed he renounced Magna Carta and started the First Baron’s War. In 1216 he died, replaced by his son – and the rest we know.

Chapter 61 was the main bone of contention for John in 1215, but it was chapters 12 and 14 which would inspire and shape the evolution of the first true parliaments by the end of the century. Taxation by consent was fast becoming a universally agreed to requirement. ‘Common counsel’ in the form of representative barons and clergy suited the start of the century fine; but it would be unjustifiable in a representative legislature within fifty years.

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