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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but starting with the 1828 Offences Against the Person Act, sections of Magna Carta have since been overwritten or repealed.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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The Monarchy and British History

June 17, 2010 1 comment

“The monarchy is a political referee, not a political player, and there is a lot of sense in choosing the referee by a different principle from the players. It lessens the danger that the referee might try to start playing.”

— The Rt Hon. Conrad Russell, 5th Earl Russell

People measure the origins of the monarchy in different ways.  1066, when the Norman King William I seized power; or 924, when King Aethelstan of Mercia became King of the English in name and in law; or 886, when Alfred the Great first claimed sovereignty over England, even if it wasn’t complete; genealogically, we could trace it to at least 519, when Cerdic founded Wessex (and who, incidentally, claimed inheritance through the ages directly from Odin himself).  The monarchy’s roots of course are also Scottish, going back at least to Kenneth I, founder of the Kingdom of the Picts in 843, and tracing far back into Pictish and Irish origins. The monarchy, clearly, is old.

While other countries often have a major historical event, such as a revolution, unification or independence as their symbol, Britain has never had a nation-defining revolution and never had to seek independence from a foreign power.  While a Union was formed in 1707, the Union has never caught the imagination of the people in the same way as, for example, the Risorgimento in Italy or Confederation in Canada.  Britain’s monarchy, on the other hand, has been at the forefront of all the major nation-defining events in British history; the forging of England by Alfred the Great; the birth of Scotland under Kenneth MacAlpin; the first parliaments; the creation of the state churches; the Scottish Wars of Independence against England; the Union of the Crowns; the Civil Wars; the Glorious Revolution; the Act of Union, and tons more.

But what, historically, was a monarch for? In some instances a local tribal chief would seize control and become king by force; in other occasions the monarch was elected from among local tribal leaders to lead them all collectively. In England and Pict/Scotland for many centuries, the king would be elected from among powerful nobles to be entrusted with the safety of their subjects and to act as overseer of the laws. A monarch, then, doesn’t have to be hereditary. Normally, though, they are monarch for life (with the possible exceptions of the President of France and the Yang di-Pertuan Agong of Malaysia).

Ancient societies put great store in inheritance. In decaying Roman Britain, besieged military garrisons relied increasingly upon sons of veteran captains who would have been trained under their wing.  For example, “Old King Cole” is at the head of many ancient Welsh royal genealogies, and appears to have been a Roman commander at Hadrian’s Wall called “Coel Hen”, or there’s Dumnagual, who appears to have governed in the Stratchclyde region at around the same time.

The enormous turmoil in the fall of Rome and the destruction of huge swathes of public and private property with successive waves of barbarian invasions uprooted many settled and wealthy peoples and focussed responsibilities for defence on the few figures of authority that remained. With the decline in stable government and property rights, the concepts of property and inheritance eventually transferred to politics and power.

Additionally, the spread of religion reinforced the notion of family in British societies. The idea of God the Father was coupled with the notion of the King being God’s national delegate and father of the nation. Ergo, the monarchy was head of the national ‘family’, and inheritance of the reigns of power made sense from this point of view.

The monarchy served a useful function in early Britain, as chief executive and source of state power and justice. The power of the monarchy ebbed and flowed during the Middle Ages, chiefly against the power of the nobility. The rise of the Tudor dynasty established England’s early modern centralised state. The rise of this modern state led some to question how appropriate it was for such enormous power to be held by one person, potentially threatening to the ancient rights of the people.

The brutal conflict of the 1640s, commonly known as the English Civil War, more accurately called the War of the Three Kingdoms, was fought throughout Britain to answer this question. The republican experiment proved it wasn’t simply its inherited status that was the problem, but a matter of effective accountability and checks to sovereign power. British society became nostalgic for the rights and freedoms monarchy had guaranteed, and the monarchy was restored in 1660.

The civil war and the republic that followed was still a fresh memory for many in Britain when the constitution again fell into the balance in 1688, and the framers of the Glorious Revolution wanted to avoid the concentration of power as happened with Oliver Cromwell. Rather than abolish the monarchy, Parliament brought the monarchy under its formal control, knowing that the Crown could still serve as a force for good in Britain. The monarchy remained an executive monarch for another few years, but by the mid 18th century the modern concept of parliamentary government was established and the monarch took on a new role, that of symbol and of watchdog.

Republicanism has peaked and troughed in fortunes throughout early modern British history; after the Civil Wars, in the midst of the French Revolution, during Queen Victoria’s years of mourning for Prince Albert, with the rise of communism, and now has become fashionable once again in the modern era, particularly in, for example, Australia.  The fact that each period has been followed by a period of heightened loyalty to the institution shows a number of things.  Firstly, there is nothing ‘inevitable’ about the abolition of the monarchy.  The monarchy has survived countless threats to its position and there’s every cause to assume republicanism will diminish again in the future; secondly, that throughout the modern era monarchy has proven flexible to these challenges and has adapted to new roles as the constitution has grown and matured; and thirdly, that the monarchy needs to continue to adapt and to find a role to serve the United Kingdom and the Commonwealth of Nations if it is to survive.

The oldest law – the Statute of Marlborough, 1267

June 5, 2010 2 comments

The oldest piece of legislation still in force in the UK is the English Statute of Marlborough, passed in 1267 – not Magna Carta; more on that later.

It is observable that the Statute of Marlborough is only two years after de Montfort’s Parliament was disbanded.  One of the problems was that during the recent disorders within the Kingdom of England through the struggle between the King and the barons, some lords and landowners deliberately attacked the land of their neighbours, particularly if they were of the opposing political group.  The law sought to redress this by making such actions accountable to the courts.  Here is the law.

First, the flowerly preamble:

“PROVISIONS made at Marlborough in the Presence of our Lord King Henry, and Richard King of the Romans, and the Lord Edward eldest Son of the said King Henry, and the Lord Ottobon, at that Time Legate in England .In the Year of Grace, One thousand two hundred sixty–seven, the two–and–fiftieth Year of the Reign of King Henry, Son of King John, in the Utas of Saint Martin, the said King our Lord providing for the better Estate of his Realm of England, and for the more speedy Ministration of Justice, as belongeth to the Office of a King, the more discreet Men of the Realm being called together, as well of the higher as of the lower Estate: It was Provided, agreed, and ordained, that whereas the Realm of England of late had been disquieted with manifold Troubles and Dissensions; for Reformation whereof Statutes and Laws be right necessary, whereby the Peace and Tranquillity of the People must be observed; wherein the King, intending to devise convenient Remedy, hath made these Acts, Ordinances, and Statutes underwritten, which he willeth to be observed for ever firmly and inviolably of all his Subjects, as well high as low.”

..and here we find the actual law.  It requires that farmers and landowners may not deliberately neglect to upkeep the facilities on their land to the detriment of tenants and workers.  It also requires that attempts to secure recompense for damages may only be legally obtained through the courts:

“Also Fermors, during their Terms, shall not make Waste, Sale, nor Exile of House, Woods, Men, nor of any Thing belonging to the Tenements that they have to ferm, without special Licence had by Writing of Covenant, making mention that they may do it; which thing if they do, and thereof be convict, they shall yield full Damage, and shall be punished by Amerciament grievously.”

‘Tenement’ refers to land held, rather than owned.  1267 being at the height of the feudal era, the land would be held by a noble on behalf of the king, or on behalf of another noble.

‘Amerciament’ is an arbitrary punishment to be determined by the authorities.

In response to a comment: from what research I have quickly done, the licence would essentially be a common law written agreement between the two parties in a procedure called a covenant-at-law.  The agreement was enforceable to the next generation of landlords and tenants until both agreed to alter it.  In case of breaches local courts would administer justice.

Categories: History

The King will legislate through Parliament alone – 1322


King Edward II’s reign was not altogether a happy one for England; more on that at a future date.  There was at least one signficant and long-lasting change; in 1322, the King pledged that henceforth and forever, all laws would be created and amended through Parliament.

In essence, Edward was confirming established practice, but this was in the light of recent violations of the law by himself.  Edward was in the midst of yet another power struggle with the Commons, Lords and Clergy over his association with powerful individuals, notably his favoured Hugh Despenser.  Edward angered the nobility by ignoring laws and clearly acting to accrue wealth and power to the Despensers; following a rebellion in 1321 led by the Earl of Hereford and the Earl of Lancaster, Edward was forced to treaty with the barons and made the following pledge:

“It is accorded and established, at the said Parliament, by our Lord the King, and by the said Prelates, Earls, and Barons, and the whole Commonalty of the Realm, at this Parliament assembled, That all the Things, by the said Ordainors ordained and contained in the said Ordinances, shall from henceforth for the Time to come cease and shall lose their Name, Force, Virtue, and Effect for ever; The Statutes and Establishments duly made by our Lord the King and his Ancestors, before the said Ordinances, abiding in their Force: And that for ever hereafter, all manner of Ordinances or Provisions, made by the Subjects of our Lord the King or of his Heirs, by any power or Authority whatsoever, concerning the Royal Power of our Lord the King or of his Heirs, or against the Estate of our said Lord the King or of his Heirs, or against the Estate of the Crown, shall be void and of no Avail or Force whatever; But the Matters which are to be established for the Estate of our Lord the King and of his Heirs, and for the Estate of the Realm and of the People, shall be treated, accorded, and established in Parliaments, by our Lord the King, and by the Assent of the Prelates, Earls, and Barons, and the Commonalty of the Realm; according as it hath been heretofore accustomed.”

The Despensers were. as consequence, banished and the monarchy became more dependent upon Parliament for his power.

1295: The Model Parliament

May 30, 2010 1 comment

“Inasmuch as a most righteous law of the emperors ordains what touches all, should be approved of all, and it is also clear that common dangers should be met by measures agreed upon in common.” – King Edward I’s Writ of Summons for the Model Parliament
The Model Parliament of 1295 was England’s first legally elected legislature.  Each county elected two knights, and each borough two burgesses, and each city two citizens.  The 292 members of the Commons, 219 of which representing the towns, were joined by 49 Lords (7 Earls, 42 Barons) and a number of Clergy, with the objective of securing for the King finances for fighting the Scots and French.  The Clergy constituted a proctor representing each cathedral, and two proctors representing each diocese.

The fact that a King, particularly the son of a King who had destroyed its illegal predecessor, would repeat de Montfort’s experiment, is remarkable.

In the midst of a series of wars, the monarchy had finally surrendered to Parliament the arbitrary power of taxation, in order to enlist the financial help of as many areas of society as possible.  Ostensibly, this was the new parliament’s sole function, but the Commons hoped to get various grievances addressed in return for its cooperation in gathering taxes, and herein lies the origins of Parliament’s legislative capacity.  This early practice of negotiation between the Crown and the Commons would become commonplace very quickly;  in 1309, the Commons submitted to the new King, Edward II, a list of grievances they wished addressed before they would grant taxes.

Each estate (Lords, Clergy and Commons) agreed their final contributions to Edward’s wars which were less than generous, from the king’s perspective; the knights and lords provided an 11th of their incomes, the Clergy a 10th, and the boroughs a 7th.  Nevertheless, sufficient money was raised to fight the war.

It is small wonder that this is known as the model parliament.  It is from this that all future parliaments base their unbroken continuity.  As the great Victorian historian F W Maitland wrote:

“The clergy and baronage are summoned to treat, ordain and execute; the representatives of the Commons are to bring full powers from those whom they represent to execute what should be ordained by the common council. A body constituted in this manner is a Parliament; what the king enacts with the consent of such a body is a statute. The importance of this moment in our history cannot be underestimated.”

Election of the Commons brought in their ability to encourage cooperation of the taxed, as well as helping to prevent taxes from being set at an unreasonably high level.  However, in the long term, the Commons would never be satisfied with cursory influence over the laws and would demand increasing power.

Thanks to Crown, Woolsack and Mace: The Model Parliament of 1295 for some useful information.

Categories: History

De Montfort’s Parliament, 1265


The Second Baron’s War turned against King Henry III in 1264 when the royal army was destroyed by baronial rebels at Lewes, Sussex, and the King and his son, Edward, were captured.  A temporary truce, the Mise of Lewes, was signed by Henry.  The details of the truce are not known, but what is known is that Simon de Montfort, the 6th Earl of Leicester, took it upon himself to call a parliament to form a new constitution.

This parliament was the first elected parliament in England.

De Montfort was born in 1208.  He came from a powerful Norman French family originating in Flanders, who had served the heirs of William the Conqueror loyally, and had a strong military heritage.  Simon’s father, also called Simon, had served in the Fourth Crusade.  His relations with the King blew hot and cold throughout his lifetime, and he married the King’s sister, Eleanor, to avoid a scandal.  De Montfort was the leader of the Barons during the civil war, and after the Battle of Lewes set up an administrative troika of himself, the Earl of Gloucester and the Bishop of Chichester.

De Montfort’s motives, as Dr David Carpenter observed, were a mixture of idealism and outright personal interest.  He was concerned about the nature of government, as evidenced by his supposed discussion of Aristotle’s definition of tyranny with Robert Grosseteste, Bishop of Lincoln – that the just ruler concerns himself with the interests of his subjects, while the tyrant merely consults his own.  But at the same time his grievances against the King stemmed from dissatisfaction with royal patronage – he had received too little, namely a meagre endowment of land upon his marriage to Eleanor.  The attempted creation of a new way of government in 1265 was blackened by the fact it was achieved through violence and not through consent.  Therefore it was necessary to make the regime popular and well supported.

De Montfort’s parliament stipulated that all representatives of the Communitas, or Commons, be elected.  Their presence, however was short-lived, as Henry III promptly condemned the illegal parliament and renewed the war against de Montfort.  With his star waning, de Montfort was captured and killed at the Battle of Evesham.  His body was cut up and portions displayed over city gates throughout England.

The men of 1258 and 1265 turned parliament from an occasion into an institution, an institution which they used as the fundamental source of authority for the government of England.  Parliament moved from being a meeting which received judicial pleas and consider fiscal matters, into one in which the King met with his subjects and together considered the needs of himself and his realm and people.  Parliament was the seat of discussion and decision, and the source of all reform.  The ramifications of the short-lived event were enormous.

Sources:

Carpenter, D (1994) From King John to the first English Duke: 1215-1337 in Smith, R (ed, 1994) The House of Lords: A Thousand Years of British Tradition, Smith’s Peerage Publications.

Categories: History

The Mad Parliament of 1258


‘There shall be parliaments three times a year…(and) to these parliaments there shall come the elected of the king, to review the state of the realm and to deal with the common needs of the realm and the king together’

The first Magna Carta had been proclaimed in 1215 by King John.  This document was testament to the growing power of England’s Barons, who increasingly desired inclusion in the realm’s government, but also signified the growing contradictions within English policymaking.

Throughout the Thirteenth Century, the government of Henry III, who had succeeded King John in 1216, came under increasing criticism.  Long and incompetently-managed campaigns in France in 1230 and 1242 drained England’s blood and treasure, combined with perceived abuses of the King’s domestic powers, and his own extravagant lifestyle, undermined the authority of the Crown.

Throughout the middle of the Century the list of grievances piled up, and many Barons sought to restrain the King’s power.  On  May 2, 1258, Henry III swore an oath to re-order the government of the kingdom.  A month later, he agreed (or was forced to consent to) the Provisions of Oxford – England’s first written constitution.

The Provisions stipulated that the King’s government would be scrutinised by a council of 24 barons, 12 chosen by Henry, 12 by the Barons.  This council would meet with Parliament three times a year to discuss national affairs.  Additionally, the Sheriffs and the Great Offices of State would hold office for one year only and submit details of their accounts to Parliament upon termination of their office.

Henry signified his assent to the Provisions on October 18th, 1258.  The Provisions failed to address the grievances of the Barons, and the Provisions of Westminster were also passed in the following  year to amend inheritance and tax law.

Sadly no text of the Provisions remain, and what we know comes from later historical accounts.  Significantly the Provisions were the first time in which the laws of England were deliberately altered in the King’s courts.  They were also the first pieces of English legislation promulgated in English, as well as French and Latin.  The Provisions of Westminster have survived, however; they can be seen here.

Subsequent divisions among the Barons allowed Henry to repudiate the Provisions – helped by a Papal Bull condemning such restrictions on the powers of the King – in 1261.  Two years later, a vicious and drawn-out civil war engulfed England, known as the Second Baron’s War.

It’s little wonder that the 1258 Parliament is remembered as the Mad Parliament.

Categories: History