Magna Carta

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Magna Carta

Magna Carta (Latin for "Great Charter," literally "Great Paper"), also called Magna Carta Libertatum ("Great Charter of Freedoms"), is an English charter originally issued in 1215. Magna Carta was the most significant early influence on the long historical process that led to the rule of constitutional law today. Magna Carta influenced many common law documents, such as the United States Constitution and Bill of Rights, and is considered one of the most important legal documents in the history of democracy.

Magna Carta was originally created because of disagreements between Pope Innocent III, King John, and his English barons about the rights of the King. Magna Carta required the king to renounce certain rights, respect certain legal procedures and accept that "the will of the king could be bound by law." Many clauses were renewed throughout the Middle Ages, and further during the Tudor and Stuart periods, and the seventeenth and eighteenth centuries. By the early nineteenth century, most clauses had been repealed from English law.

There are a number of popular misconceptions about Magna Carta, such as that it was the first document to limit the power of an English king by law (it was not the first, and was partly based on the Charter of Liberties); that it in practice limited the power of the king (it mostly did not in the Middle Ages); and that it is a single static document (it is a variety of documents referred to under a common name). Nonetheless, rights established by the Magna Carta have subsequently become fundamental principles of international human rights and it can be argued that democratic societies developed as a long-term consequence of this charter.

Contents

Events leading to Magna Carta

One of the certified copies of Magna Carta made in 1215.

After the Norman conquest of England in 1066 and advances in the twelfth century, the King of England had by 1199 become the most powerful monarch in Europe. This was due to a number of factors, including the authoritarian centralized government created by the Normans on the basis of the already existing efficient Anglo-Saxon institutions. England was a relatively rich and prosperous country and the Normans harnessed those resources for their own purposes. After King John of England was crowned in the early thirteenth century, however, a series of stunning failures on his part led the barons of England to revolt and place checks on the king's power.

France

A major cause of discontent in the realm were John's actions in France. At the time of King John's accession to the throne after Richard's death, there were no set rules to define the line of succession. John, as Richard's younger brother, was crowned over Richard's nephew, Arthur of Brittany. As Arthur still had a claim over the Anjou empire, however, John needed the approval of the French King, Philip Augustus. To get it, John gave to Philip vast tracts of the French-speaking Anjou territories.

When John later married Isabella of Angoulême, her previous fiancé (Hugh IX of Lusignan, one of John's vassals) appealed to Philip, who then declared forfeit all of John's French lands, including rich Normandy. Philip declared Arthur as the true ruler of the Anjou throne and invaded John's French holdings in mid-1202 to give it to him. John had to act quickly to save face, but his eventual actions did not achieve this—he ended up killing Arthur under suspicious circumstances, thus losing the little support he had from his French barons.

After the defeat of John's allies at the Battle of Bouvines, Philip retained all of John's northern French territories, including Normandy (although the Aquitaine remained in English hands for a time). As a result, John was revealed as a weak military leader, and one who lost to the French a major source of income, neither of which made him popular at home. Worse, to recoup his expenses, John would have to further tax the already unhappy barons.

The church

At the time of John’s reign there was still a great deal of controversy as to how the Archbishop of Canterbury was to be elected, although it had become traditional that the monarch would appoint a candidate with the approval of the monks of Canterbury.

But in the early thirteenth century, the bishops began to want a say. To achieve control, the monks elected one of their number to the role. But John, incensed at his lack of involvement in the proceedings, sent the Bishop of Norwich to Rome as his choice. Pope Innocent III declared both choices as invalid and persuaded the monks to elect Stephen Langton, who in fact was probably the best choice. But John refused to accept this choice and exiled the monks from the realm. Infuriated, Innocent ordered an interdict (prevention of public worship—mass, marriages, the ringing of church bells, etc.) in England in 1208, excommunicated John in 1209, and backed Philip to invade England in 1212.

John finally backed down and agreed to endorse Langton and allow the exiles to return, and to completely placate the pope, he gave England and Ireland as papal territories and rented them back as a fiefdom for 1,000 marks per annum. This further enraged the barons as it meant that they had even less autonomy in their own lands.

Taxes

Despite all of this, England's government could function without a strong king. The efficient civil service, established by the powerful King Henry II had run England throughout the reign of Richard I. But the government of King John needed money for armies, for during this period of prosperity, mercenary soldiers cost nearly twice as much as before. The loss of the French territories, especially Normandy, greatly reduced the state income and a huge tax would have to be raised in order to attempt to reclaim these territories. Yet it was difficult to raise taxes due to the tradition of keeping them at the same level.

Novel forms of income included a Forest law, a set of regulations about the king’s forest which were easily broken and severely punished. John also increased the pre-existing scutage (feudal payment to an overlord replacing direct military service) eleven times in his seventeen years as king, as compared to eleven times in twice that period covering three monarchs before him. The last two of these increases were double the increase of their predecessors. He also imposed the first income tax which rose, what was at the time, the extortionate sum of £60,000.

Rebellion and civil war

John of England signs Magna Carta—illustration from Cassell's History of England (1902)

By 1215, some of the barons of England banded together and took London by force on June 10, 1215. They and many of the fence-sitting moderates not in overt rebellion forced King John to agree to a document called the "Articles of the Barons," to which his Great Seal was attached in the meadow at Runnymede on June 15, 1215. In return, the barons renewed their oaths of fealty to King John on June 19, 1215. A formal document to record the agreement was created by the royal chancery on July 15: this was the original Magna Carta. An unknown number of copies of it were sent out to officials, such as royal sheriffs and bishops.

The most significant clause for King John at the time was clause 61, known as the "security clause," the longest portion of the document. This established a committee of 25 barons who could at any time meet and over-rule the will of the King, through force by seizing his castles and possessions if needed. This was based on a medieval legal practice known as distraint, which was commonly done, but it was the first time it had been applied to a monarch. In addition, the King was to take an oath of loyalty to the committee.

King John had no intention of honoring Magna Carta, as it was sealed under extortion by force, and clause 61 essentially neutered his power as a monarch, making him King in name only. He renounced it as soon as the barons left London, plunging England into a civil war, called the First Barons' War. Pope Innocent III also annulled the "shameful and demeaning agreement, forced upon the king by violence and fear." He rejected any call for rights, saying it impaired King John's dignity. He saw it as an affront to the Church's authority over the king and released John from his oath to obey it.

Magna Carta re-issued

John died in the middle of the war, from dysentery, on October 18, 1216, and this quickly changed the nature of the war. His nine-year-old son, Henry III, was next in line for the throne. The royalists believed the rebel barons would find the idea of loyalty to the child Henry more palatable, and so the child was swiftly crowned in late October 1216, and the war ended.

Henry's regents reissued Magna Carta in his name on November 12, 1216, omitting some clauses, such as clause 61, and again in 1217. When he turned 18 in 1225, Henry III himself reissued Magna Carta again, this time in a shorter version with only 37 articles.

Henry III ruled for 56 years (the longest reign of an English Monarch in the Medieval period) so that by the time of his death in 1272, Magna Carta had become a settled part of English legal precedent, and more difficult for a future monarch to annul as King John had attempted nearly three generations earlier.

Henry III's son and heir, Edward I's Parliament reissued Magna Carta for the final time on October 12, 1297 as part of a statute called Confirmatio cartarum (25 Edw. I), reconfirming Henry III's shorter version of Magna Carta from 1225.

Content of Magna Carta

Seal of King John on original Magna Carta.

The Magna Carta was originally written in Latin. A large part of Magna Carta was copied, nearly word for word, from the Charter of Liberties of Henry I, issued when Henry I ascended to the throne in 1100, which bound the king to certain laws regarding the treatment of church officials and nobles, effectively granting certain civil liberties to the church and the English nobility.

Rights still in force today

Three clauses of Magna Carta remain in force in current UK law, and can be viewed on the UK Statute Law Database.[1]

Clause 1 of Magna Carta (the original 1215 edition) guarantees the freedom of the English Church. Although this originally meant freedom from the King, later in history it was used for different purposes (see below). Clause 13 guarantees the “ancient liberties” of the city of London. Clause 29 gives a right to due process.

The 1215 edition was annulled in 1216 (see above) but some of the 1297 version is still in force today and preserves the rights listed above.

In 1828 the passing of the first Offences Against the Person Act, was the first time a clause of Magna Carta was repealed, namely Clause 36. With the document's perceived protected status broken, in one hundred and fifty years nearly the whole charter was repealed, leaving just Clauses 1, 13, 29, and 40 still in force after the Statute Law (Repeals) Act was passed in 1969.

Feudal rights still in place in 1225

These clauses were present in the 1225 charter but are no longer in force, and would have no real place in the post-feudal world. Clauses 2 to 7 refer to the feudal death duties; defining the amounts and what to do if an heir to a fiefdom is underage or is a widow. Clause 23 provides no town or person should be forced to build a bridge across a river. Clause 33 demands the removal of all fish weirs. Clause 43 gives special provision for tax on reverted estates and Clause 44 states that forest law should only apply to those in the King’s forest.

Feudal rights not in the 1225 charter

These provisions have no bearing in the world today, as they are feudal rights, and were not even included in the 1225 charter. Clauses 9 to 12, 14 to 16, and 25 to 26 deal with debt and taxes and Clause 27 with intestacy.

The other clauses state that no one may seize land in debt except as a last resort, that underage heirs and widows should not pay interest on inherited loans, that county rents will stay at their ancient amounts and that the crown may only seize the value owed in payment of a debt, that aid (taxes for warfare or other emergency) must be reasonable, and that scutage (literally, shield-payment, payment in lieu of actual military service used to finance warfare) may only be sought with the consent of the kingdom.

These clauses were not present in the 1225 document, but still this led to the first parliament. Clause 14 provided that the common consent of the kingdom was to be sought from a council of the archbishops, bishops, earls and greater Barons. This later became the great council (see below).

Judicial rights (also in 1225 Charter)

These rights were the beginning of English judicial rights. Clauses 17 to 22 allowed for a fixed law court, which became the chancellery, and defines the scope and frequency of county assizes. They also said that fines should be proportionate to the offense, that they should not be influenced by ecclesiastical property in clergy trials, and that people should be tried by their peers. Many think that this gave rise to jury and magistrate trial, but its only manifestation in today’s world is the right of a Lord to trial in the House of Lords at first instance.

Clause 24 states that crown officials (such as sheriffs) may not try a crime in place of a judge. Clause 34 forbids repossession without a writ precipe. Clauses 36 to 38 state that writs for loss of life or limb are to be free, that someone may use reasonable force to secure their own land and that no one can be tried on their own testimony alone.

Clause 54 says that no man may be imprisoned on the testimony of a woman except on the death of her husband.

Anti-corruption and fair trade (also in 1225 Charter)

Clauses 28 to 32 say that no royal officer may take any commodity such as corn, wood, or transport without payment or consent or force a knight to pay for something they could do themselves and that he must return any lands confiscated from a felon within a year and a day.

Clause 25 sets out a list of standard measures and Clauses 41 and 42 guarantee the safety and right of entry and exit of foreign merchants.

Clause 45 says that the king should only appoint royal officers where they are suitable for the post. Clause 46 provides for the guardianship of monasteries.

Temporary provisions

These provisions were for immediate effect, and were not in any later charter. Clauses 47 and 48 abolish most of Forest Law. Clauses 49, 52 to 53, and 55 to 59 provide for the return of hostages, land, and fines taken in John’s reign.

Article 50 says that no member of the D’Athèe family may be a royal officer. Article 51 provides all foreign knights and mercenaries should leave the realm.

Articles 60, 62, and 63 provide for the application and observation of The Charter and say that The Charter is binding on the Kings and his heirs forever, but this was soon deemed to be dependent on that specific King reaffirming The Charter under his own seal.

1226–1495

The document commonly known as Magna Carta today is not the 1215 charter, but a later charter of 1225, and is usually shown in the form of The Charter of 1297 when it was confirmed by Edward I. At the time of the 1215 charter, many of the provisions were not meant to make long term changes but simply to right the immediate wrongs, and therefore The Charter was reissued three times in the reign of Henry III (1216, 1217, and 1225) in order to provide for an updated version. After this, each individual king for the next two-hundred years (until Henry V in 1416) personally confirmed the 1225 charter in their own charter.

Magna Carta had little effect on the rest of the development of parliament until the Tudor period. Knights and county representatives attended the Great Council (Simon de Montfort’s Parliament), and the council became far more representative under the model parliament of Edward I, which included two knights from each county, two burgesses from each borough, and two citizens from each city. The Commons separated from the Lords in 1341. The right of commons to exclusively sanction taxes (based on a withdrawn provision of Magna Carta) was re-asserted in 1407, although it was not enforced in this period. The power vested in the Great Council by, albeit withdrawn, Clause 14 of Magna Carta became vested in the House of Commons but Magna Carta was all but forgotten for about a century, until the Tudors.

Great Council

The first long-term constitutional effect arose from Clauses 14 and 61. These clauses permitted a council comprised of the most powerful men in the country, to exist for the benefit of the state rather than in allegiance to the monarch. Members of the council were also allowed to renounce their oath of allegiance to the king in pressing circumstances and to pledge allegiance to the council and not to the king in certain instances. The common council was responsible for taxation and, although it was not representative, its members were bound by decisions made in their absence. The common council, later called the Great Council, was England's proto-parliament.

The Great Council only existed to give input and opinions on the kingdom as a whole, and only had power in relation to scutage until 1258, when Henry III got into debt fighting in Sicily for the pope. The Barons agreed to a tax in return for reform, leading to the Provisions of Oxford. But Henry got a papal bull allowing him to set aside the provisions and in 1262 told royal officers to ignore the provisions and only to obey Magna Carta. The Barons revolted and seized the Tower of London, the cinque ports and Gloucester. Initially the king surrendered, but when Louis IX (of France) arbitrated in favor of Henry, Henry crushed the rebellion. Later he ceded somewhat, passing the Statute of Marlborough in 1267, which allowed writs for breaches of Magna Carta to be free of charge, enabling anyone to have standing to apply the charter.

This secured the position of the council forever, but its powers were still very limited. The council originally only met three times a year, when the king wore his crown, and so was subservient to the king’s council, Curiae Regis, who, unlike the Great Council, followed the king wherever he went.

Still, in some senses the council was an early form of parliament. It had the power to meet outside the authority of the king, and was not appointed by him. Whilst modern government descends from the Curiae Regis, parliament descends from the Great Council, which was later called the parliamentum. Still, the council was very different from modern parliament. There were no knights, let alone commons, and it was composed of the most powerful men, rather than elected.

The Tudors

Although it was the first entry on the statute books, Magna Carta was not mentioned after 1472 for nearly 100 years. There was much ignorance about the document even by those who wrote about the period. The few who did know about the document spoke of a good king being forced by an unstable pope and rebellious Barons “to attaine the shadow of seeming liberties” and that it was a product of a wrongful rebellion against the one true authority, the king. The original Magna Carta was seen as an ancient document with shadowy origins which had no bearing on the Tudor world. Shakespeare’s King John makes no mention of The Charter at all, but focuses on the murder of Arthur. The Charter in the statute books was thought to arise from the reign of Henry III.

First uses of the charter as a bill of rights

This statute was used widely in the reign of Henry VIII, but it seems that it was seen as any other statute which could be amended and removed. But later in the reign, the Lord Treasurer stated in the Star Chamber that many had lost their lives in the Baronial wars fighting for the liberties, which were guaranteed by The Charter, and therefore it should not so easily be overlooked as a simple and regular statute.

The church often attempted to invoke the first clause of The Charter to protect itself from the attacks by Henry, but this claim was given no credence. Francis Bacon was the first to try to use Clause 39 to guarantee due process in a trial.

Although the early Tudor period saw a re-awaking of the use of Magna Carta in the common law, it was not seen, as it was later, as an entrenched set of liberties guaranteed for the people against The Crown and Government. Rather, it was a normal statute which gave a certain level of liberties, most of which could not be relied on, least of all against the King. Therefore The Charter had little effect on the governance of the early Tudor period. Although lay parliament evolved from The Charter, by this stage the powers of the institution had gone far beyond those humble beginnings under its own volition. The Charter had no real effect until the Elizabethan age.

Reintepretation of the charter

In the Elizabethan age, England was becoming the most powerful force in Europe and so pride became a primary force in academia. Thus, attempts were made to prove that Parliament had Roman origins. This futile search was undertaken with great earnest. The events at Runnymede were re-discovered in 1215, allowing a possibility to show the antiquity of Parliament, and Magna Carta became synonymous with the idea of an ancient house with origins in Roman government.

The Charter was rightfully interpreted as an attempt to return to a pre-Norman state of things. The Tudors saw it as proof that the state of governance had existed since time immemorial and the Normans had been a brief break from this liberty and democracy. This is disputed in certain circles, but explains how Magna Carta came to be regarded as such an important document.

Magna Carta again occupied the forefront of legal thought, and it again became possible for it to shape the way that government was run. Soon the Charter was seen as an immutable entity. In the trial of Arthur Hall for questioning the antiquity of the house, one of his alleged crimes was an attack on Magna Carta.

Edward Coke’s opinions

Jurist Edward Coke interpreted Magna Carta to apply not only to the protection of nobles but to all subjects of the crown equally. He famously asserted: "Magna Carta is such a fellow, that he will have no sovereign."

One of the first respected jurists to write seriously about the great charter was Edward Coke (1552-1634), who had a great deal to say on the subject and was hugely influential in the way Magna Carta was perceived throughout the Tudor and Stuart periods, although his opinions changed across time and his writing in the Stuart period was more influential; that will be discussed below. In the Elizabethan period Coke wrote of Parliament evolving alongside the monarchy and not existing due to any allowance on the part of the monarch. However he was still fiercely loyal to Elizabeth and the monarchy still judged The Charter in the same light it always had, an evil document forced out of their forefathers by brute force, therefore he suppressed a re-affirmation of The Charter from passing the house and although he spoke highly of The Charter he did not speak out against imprisonments without due process; actions which came back to haunt later when he moved for a reaffirmation of The Charter himself.

It does not seems strange that Coke’s opinions were so confused however, as the times were confused about how to treat The Charter; the Petition of Right in 1628 was meant as a reaffirmation of The Charter, but was defeated by the Attorney General as he stated that the petition claimed it was a mere codification of existing law stemming for Magna Carta, but that there was no precedent shown as to these laws existing in such as a way as they bound the present king; there was a definite feeling that the king could not be bound by law and therefore Clause 39 and all others did not apply to him. The Charter was seen as important as a statement as to the antiquity of Parliament; not, as could rightfully be claimed, because it was the catalyst to the genesis of Parliament but instead of Parliament being pre-Norman (again, this latter point is disputed by certain critics). It was seen to an extent as entrenched law due to this as no one would dare refute it, but it most certainly was not seen as binding on the king; it would need the Stuart period before anyone would dare suggest such a thing.

Magna Carta’s Role in the lead-up to the Civil War

By the time of the Stuarts, Magna Carta had attained an almost mystical status for its admirers and was seen as representing a "golden age" of English liberties extant prior to the Norman invasion. Whether or not this "golden age" ever truly existed is open to debate; regardless, proponents of its application to English law saw themselves as leading England back to a pre-Norman state of affairs. What is true, however, is this age existed in the hearts and minds of the people of the time. Magna Carta was not important because of the liberties it bestowed, but simply as "proof" of what had come before; many great minds influentially exalted The Charter; by the seventeenth century Coke was talking of The Charter as an indispensable method of limiting the powers of the Crown, a topic very much subscribed to in the Stuart period, where the kings were preaching about their divine right and were looking, to the mind of their subjects at least, to become absolute monarchs (and who would indeed openly attempt to return England to Catholicism).

It was not the content of The Charter which has made it so important in the history of England, but far more how it has been perceived in the popular mind. This is something which certainly started in the Stuart period, as The Charter represented many things which are not to be found in The Charter itself, firstly that it could be used to claim liberties against the Government in general rather than just the Crown and the officers of the crown as discussed above, secondly that it represented that the laws and liberties of England, specifically Parliament, dated back to a time immemorial and thirdly, that it was not only just, but right, to usurp a King who disobeyed the law.

For the last of these reasons Magna Carta began to represent a danger to the Monarchy; Elizabeth ordered that Coke stop a bill from going through Parliament, which would have reaffirmed the validity of The Charter and Charles I and ordered the suppression of a book which Coke intended to write on Magna Carta. But the powers of Parliament by this stage were growing, and on Coke’s death they ordered his house to be searched and the manuscripts were recovered and the book was published in 1642 (at the end of Charles I's Eleven Years Tyranny). The Parliament began to see Magna Carta as its best way of claiming supremacy over the crown, and began to preach that they were the sworn defenders of the liberties fundamental and immemorial which were to be found in The Charter.

In the four centuries since The Charter had originally catered for their creation, Parliament’s power had increased greatly from their original level where they existed only for the purpose that the king had to seek their permission in order to raise scutage. Now they were the only body allowed to raise tax, a right, which although descended from the 1215 Great Charter, was no longer guaranteed by it, as it was removed from the 1225 edition. Parliament had now gotten so powerful that The Charter was at that time being used for two purposes: With Parliament as a new organ of the Crown, it was used by those wishing to limit Parliament’s power, and as a set of principles Parliament was sworn to defend against the King by those wishing to rival the power of the king with Parliament’s power. When it became obvious that people wished to limit the power of Parliament by claiming it to be tantamount to the crown, Parliament claimed they had the sole right of interpretation of The Charter.

This was a hugely important step. For the first time Parliament was claiming itself as a body above the law; whereas one of the fundamental principles in English law was that all were held by the law; Parliament, the monarch, and the church, albeit to very different extents. Parliament here were claiming exactly what Magna Carta wanted to prevent the King from claiming, a claim of not being subject to any higher form of power. This was not claimed until ten years after the death of Lord Coke, but he most certainly would not have agreed with this, as he claimed in the English Constitution, the law was supreme and all bodies of government were subservient to the supreme law; the common law, embodied in The Great Charter.

These early discussions of Parliament sovereignty seemed to only involve The Charter as the entrenched law, and the discussions were simply about whether or not Parliament had enough power to repeal the document or not. This debate was not as important as it may seem, for although it was important for Parliament to be able to claim a great deal of power, as they could foresee that war was brewing and that very soon they would have to claim themselves as more powerful than the King himself, this very provision was provided for by The Charter itself. Clause 61 of The Charter enables people to swear allegiance to what became the Great Council and later Parliament and therefore to renounce allegiance to the King. Moreover, Clause 61 allowed for the seizing of the kingdom by the body which was later to become Parliament if Magna Carta was not respected by the King or Lord Chief Justice. In which case, there was no need to show any novel level of power in order to overthrow the King; it had already been set out in Magna Carta nearly half a millennium before hand. However, Parliament was not simply seeking a justification to overthrow the monarch, they were seeking to establish themselves as the true and sovereign government of the United Kingdom, and for this they needed to show that they could overrule Magna Carta. However Parliament was not ready to repeal The Charter yet, as they would need it in order to war against the King, and, in fact, was cited as the reason why ship-money was illegal, which was the first time Parliament overruled the king; the start of the rebellion.

Trial of Archbishop Laud

Further proof of the significance of Magna Carta is shown in the trial of Archbishop Laud in 1645. Laud was tried with attempting to subvert the laws of England, including writing a condemnation of Magna Carta claiming that as the Charter came about due to rebellion, it was not valid, a widely held opinion less than a century before; when the "true" Magna Carta was thought to be the 1225 edition and the 1215 edition was overlooked for this very reason. However Laud was not trying to say that Magna Carta was evil, merely stating the truth about its origins, as he used the document in his defense. He claimed his trial was against the right of the freedom of the church (as the Bishops were voted out of Parliament in order to allow for parliamentary condemnation of him) and, rightfully, that he was not given the benefit of due process contrary to Clauses 1 and 39 of The Charter. By this stage Magna Carta had passed a great distance beyond the original intentions for the document, and the Great Council had evolved beyond a body merely ensuing the application of The Charter. It had gotten to the stage where the Great Council or Parliament was inseparable from the ideas of the Crown as described in The Charter and therefore it was not just the King that was potentially bound by The Charter, but Parliament also.

Civil War and interregnum

After 7 years of civil war, the King surrendered and was executed; it seemed Magna Carta no longer applied, as there was no King. Oliver Cromwell was accused of destroying Magna Carta and many thought he should be crowned just so that it would apply. Cromwell himself had much disdain for the Magna Carta, at one point describing it as "Magna Farta" to a defendant who sought to rely on it.[2]

In this time of foment, there were many theorists who were enjoining the revolutionary atmosphere of the age, and many based their theories, at least initially on Magna Carta in the misguided belief that Magna Carta guaranteed liberty and equality for all.

"The Levellers"

The Levellers believed that all should be equal and free without distinction of class or status. They believed that Magna Carta was the "political bible," which should be prized above any other law and that it could not be repealed. They prized it so highly that they believed all (such as Archbishop Laud) who “trod Magna Carta … under their feet” deserved to be attacked at all levels. The original idea was to achieve this through Parliament but there was little support, because at the time the Parliament was seeking to paint itself as above Magna Carta. The Levellers claimed Magna Carta was above any branch of government, and this led to the upper echelons of the Leveller movement denouncing Parliament. They claimed that Parliament’s primary purpose was not to rule the people directly but to protect the people from the extremes of the King and that this was adequately done by Magna Carta and therefore Parliament should be subservient to it.

After the Civil War, Cromwell refused to support the Levellers and was denounced as a traitor to Magna Carta. The importance of Magna Carta was greatly magnified in the eyes of the Levellers, and Lilburne, one of the leaders of the movement, was known for his great advocacy of The Charter and was often known to explain its purpose to lay people and to expose the misspeaking against it in the popular press of the time. He was quoted as saying, "the ground and foundation of my freedome I build upon the grand charter of England." However as it became apparent that Magna Carta did not grant anywhere near the level of liberty demanded by the Levellers, the movement reduced its advocacy of it.

Welwyn, another leader of the movement, advocated natural law and other doctrines as the primary principles of the movement. This was mainly because the obvious intention of Magna Carta was to grant rights only to the Barons and the episcopacy, and not the general and equal rights the Levellers were claiming. Also influential, however, was Spelman’s rediscovery of the existence of the feudal system at the time of Magna Carta, which seemed to have less and less effect on the world of the time. The only right which the Levellers could trace back to 1215, possibly prized over all others, was the right to due process granted by Clause 39. One thing the Levellers did agree on with the popular beliefs of the time was that Magna Carta was an attempt to return to the (disputed) pre-Norman "golden age."

"The Diggers"

However, not all such groups advocated Magna Carta. The Diggers were a very early socialistic group who called for all land to be available to all for farming and the like. Winstanley, the leader of the group, despised Magna Carta as a show of the hypocrisy of the post-Norman law, as Parliament and the courts advocated Magna Carta and yet did not even follow it themselves. The Diggers did, however, believe in the pre-Norman golden age and also wished to return to it and called for the abolition of all Norman and post-Norman law.

Charles II

The Commonwealth was relatively short lived however, and when Charles II took the throne in 1660 the struggle between the Monarchy and Parliament died down as both roles were clearly defined for the time being; Parliament was established as the everyday government of Britain independent of, but not more powerful than, the King. However, the struggles based on The Charter were far from over but now took on the form of the struggle for supremacy between the Houses of Parliament. Also in 1660, Charles II vowed to respect both the common law and The Charter; it seems that the influence of Magna Carta would, for now, fall on the houses.

In Parliament

In 1664 the British navy seized Dutch lands in both Africa and America, leading to full-scale war with Holland in 1665. The Lord Chancellor, Edward Lord Clarendon, resisted an alliance with the Spanish and Swedes in favor of maintaining a relationship with the French, who were unfortunately also the allies of the Dutch. This lack of any real policy led to the Second Anglo-Dutch War (1665-67), with the Dutch burning a number of ships in the docks at Chatham, and the blame was placed on the shoulders of Clarendon. The Commons demanded that Clarendon be indicted before the Lords, but the Lords refused, citing the due process requirements of The Charter giving Clarendon the time to escape to Europe.

A very similar set of events followed in 1678, when the Commons asked the Lords to indict Thomas Lord Danby on a charge of fraternizing with the French. As with Clarendon, the Lords refused, again citing Magna Carta and their own supremacy as the upper house. Before the quarrel could be resolved Charles dissolved the Parliament. When Parliament was re-seated in 1681, again the Commons attempted to force an indictment in the Lords. This time Edward Fitzharris who was accused of writing libelously that the King was involved in a papist plot with the French (including the overthrowing of Magna Carta). However, the Lords doubted the veracity of the claim and refused to try Fitzharris, saying Magna Carta stated that everyone must be subject to due process and therefore he must be tried in a lower court first. This time the Commons retorted that it was the Lords who were denying justice under Clause 39, and that it was the Commons who were right to cite The Charter as their precedent. Again, before any true conclusions could be drawn, Charles dissolved the Parliament, although more to serve his own ends and to rid himself of a predominantly Whig Parliament, and Fitzharris was tried in a regular court (the King’s Bench) and executed for treason. Here The Charter, once again, was used far beyond the content of its provisions, and simply being used as a representation of justice. Here both houses were struggling for supremacy in a state which was now open for the taking. Each house was claiming its supremacy was supported by The Charter under Clause 39, but the power of the King was still too great for either house to come out fully as the more powerful.

Outside Parliament

The squabble also continued outside the Palace of Westminster. In 1667 the Lord Chief Justice and important member of the House of Lords, Lord Keating, forced a grand Jury of Middlesex to return a verdict of murder when they wanted to return one of manslaughter. However, his biggest crime was that, when they objected on the grounds of Magna Carta, he scoffed and exclaimed “Magna Carta, what ado with this have we?” The Commons were incensed at this abuse of The Charter and accused him of “endangering the liberties of the people.” However, the Lords claimed he was just referring to the inappropriateness of The Charter in this context, although Keating apologized anyway. In 1681, the next Lord Chief Justice, Lord Scroggs, was condemned by the Commons first for being too severe in the so-called "papist plot trials" and second for dismissing another Middlesex grand jury in order to secure against the indictment of the Duke of York, the Catholic younger brother of the King later to become James II. Charles again dissolved Parliament before the Commons could impeach Scroggs and removed him from office on a good pension. Once again, just as it seemed that the Commons might be able to impose their supremacy over the Lords, the King intervened and proved he was still the most powerful force in the government. However, it was certainly beginning to become established that the Commons were the most powerful branch of Government, and they used The Charter as much as they could in order to achieve this end.

The supremacy of the Commons

This was not the end of the struggle however, and in 1679 the Commons passed the Habeas Corpus Act of 1679, which greatly reduced the powers of the Crown and almost certainly established the Commons as the more powerful house. The act passed through the Lords by a small majority, almost as an acquiescence of the Commons being more powerful. This was the first time since the magnification of the importance of The Charter that the Government had admitted that the liberties granted by The Charter were inadequate. However, this did not completely oust the position of The Charter as an entrenched symbol of the law of the "golden age" and the basis of common law. It did not take long, however, before the questioning of The Charter really took off and Sir Matthew Hale soon afterwards introduced a new doctrine of common law based on the principle that the Crown (including the cabinet in that definition) made all law and could only be bound by the law of God, and showed that the 1215 charter was effectively overruled by the 1225 charter, which made any claims of entrenchment very difficult to back up. This added further credence to the principle that the Commons were a supreme branch of Government. Some completely denied the relevance of the 1215 Charter, as it was forced upon the king by rebellion (although no one seemed to worry that the 1225 charter was forced on a boy by his guardians) or that The Charter was nothing more than a relaxation of the rigid feudal laws and therefore had no meaning outside of this application.

The Glorious Revolution

The danger posed by the fact Charles II had no heir was becoming more and more real; as this meant that the heir apparent was the Duke of York, a Catholic and firm believer in the divine right of kings. This could well mean that all the Commons' work establishing itself as the most powerful arm of government could all too soon be undone. Parliament did all it could to prevent James’ succession but was prevented when Charles dissolved the Parliament, and danger realized itself in February 1685, when Charles died of a stroke and James II assumed the throne of the United Kingdom.

Almost straight away James attempted to impose Catholicism as the religion of the country and to regain the royal prerogative now vested in the Parliament. All this was bad enough, but Parliament was slightly placated when James’ four-year-old son died in 1677 and it seemed his Protestant daughter Mary would take his throne. However when James' second wife, Mary of Modena, gave birth to a male heir in 1688, Parliament could not take the risk that this would be another Catholic monarch that would assume the throne and take away their power. In 1688, the Convention Parliament declared that James had broken the contract of Magna Carta and nullified his claim to the throne. This once and for all proved that Parliament was the major power in the British Government; Mary, James II's eldest daughter was invited to take the throne with her husband William of Orange. Many thought that, with bringing in a new monarch, it would be prudent to define what powers this monarch should have; hence, the Bill of Rights. The

Bill of Rights went far beyond what the Magna Carta had ever achieved. It stated that the crown could not make law without Parliament and although specifically mentioned the raising of taxes, did not limit itself to such, as Magna Carta did. However, one important thing to note is that the writers of the bill did not seem to think that included any new provisions of law; all the powers it "removes" from the crown it refers to as "pretended" powers, insinuating that the rights of Parliament listed in the Bill already existed under a different authority, which one assumes is Magna Carta. Therefore the importance of Magna Carta did not extinguish at this point if, albeit it diminished somewhat.

The eighteenth century

The myth of Magna Carta continued into the eighteenth century; in 1700 Samuel Johnson talked of Magna Carta being “born with a grey beard” referring to the belief that the liberties set out in The Charter harked back to the Golden Age and the time immemorial. However, ideas about the nature of law in general were beginning to change; in 1716 the Septennial Act was passed, which had a number of consequences; firstly is showed that Parliament no longer considered its previous statutes entrenched, as this act provided that the parliamentary term was to be seven years, whereas less than twenty-five years beforehand they had passed the Triennial Act (1694) which provided a parliamentary term was to be three years. Not only this, but it greatly extended the powers of Parliament as before all legislation passed in a parliamentary session was listed in the election manifesto, so effectively, the electorate was consulted on all issues which were to be brought before Parliament. With a seven-year term, however, it was unlikely, if not impossible, that even half the legislation passed would be discussed at the election. This effectively gave Parliament the power to legislate as it liked, but not in the same way as Parliamentary sovereignty is practiced today, as Parliament still considered itself held by the higher law, such as Magna Carta, it just now felt it could overrule its own statutes. Arguments for Parliamentary sovereignty were not new, however, and even the proponents of it would not have expected Parliament to be as powerful as it is today. For example, in the century beforehand, Coke had discussed how Parliament may well have the power to repeal the common law and Magna Carta, but they were, in practice, prohibited from doing such, as the common law and Magna Carta were so important in the constitution that it would be dangerous to the continuing existence of the constitution to repeal them to any extent.

The extent of the Commons' powers

In 1722, the Bishop of Rochester (Francis Atterbury, a Stuart Jacobite), who sat at the Lords was accused of treason; in response, the Commons brought a bill intending to remove him from his post and send him into exile; and meanwhile locked him in the Tower of London. This, once again, brought up the subject of which was the more powerful house, and exactly how far that power went, as the Atterbury claimed, and many agreed, that the Commons had no dominion over the Lords. Although many influential people disagreed; the Bishop of Salisbury (also seated in the Lords), for example, was of the strong opinion that the powers of Parliament, mainly vested in the Commons, were sovereign and unlimited and therefore there could be no such thing as entrenched law and no limit on these powers at all, including the freedom of the upper house from the dominion of the lower. Many intellectuals also agreed; Jonathan Swift, for example, went as far to say that Parliament’s powers extended so far as to be able to alter or repeal Magna Carta; a claim which would still have caused many a room to fall silent.

This argument incensed the Tories and Bolingbroke spoke of the day when "liberty is restored and the radiant volume of Magna Carta is returned to its former position of Glory," and he advocated the age-old beliefs of the immemorial Parliament. This belief was anchored in the relatively new theory that when William the Conqueror invaded England, he only conquered the throne, not the land, and he therefore assumed the same position in law as the Saxon rulers before him; The Charter was a recapitulation or codification of these laws rather than, as previously believed, an attempt to reinstate these laws after the tyrannical Norman Kings. Therefore, these rights had existed constantly from the "golden age immemorial" and could never be removed by any government. This belief was still widely subscribed to, although some level of sovereignty had been established, it was not what one would recognize as sovereignty today. The Whigs, on the other hand, claimed, rightfully, that The Charter only benefited the Nobility and the Church and granted no wehere near the liberty they had come to expect. So although they attacked the content of The Charter, they did not actually attack the myth of the "golden age" or attempt to say that The Charter could be repealed, and the myth remained as immutable as ever.

America

The influence of Magna Carta can be clearly seen in the United States Bill of Rights, which enumerates various rights of the people and restrictions on government power, such as:

No person shall be … deprived of life, liberty, or property, without due process of law.

Article 21 from the Declaration of Rights in the Maryland Constitution of 1776 reads:

That no freeman ought to be taken, or imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the judgment of his peers, or by the law of the land.

Parliamentary sovereignty

The doctrine of parliamentary supremacy, if not parliamentary sovereignty, had all but emerged by the regency; William Blackstone argued strongly for sovereignty in his Commentaries on the English Law in 1765. He essentially argued that absolute supremacy must exist in one of the arms of Government and he certainly thought it resided in Parliament, as Parliament could legislate on anything and potentially could even legislate the impossible as valid law, if not practical policy. The debate over whether or not Parliament could limit or overrule the supposed rights granted by Magna Carta was to prove to be the basis for the discussion over parliamentary sovereignty, however Blackstone preached that Parliament should respect Magna Carta as a show of law from time immemorial and the other great legal mind of the time, Jeremy Bentham used The Charter to attack the legal abuses of his time.

Granville Sharp

One of the principal reformists was Granville Sharp. He was a philanthropist who supported, among other causes, the Society for the Abolition of Slavery and the Society for the Conversion of the Jews. Sharp called for the reform of Parliament based on Magna Carta, and to back this up he devised the doctrine of accumulative authority. This doctrine stated that because almost innumerable parliaments had approved Magna Carta it would take the same number of Parliaments to repeal it. Like many others, Sharp accepted the supremacy of Parliament as an institution, but did not believe that this power was without restraint, namely that Parliament could not repeal Magna Carta. Many reformists agreed that The Charter was a statement of the liberties of the mythical and immemorial golden age, but there was a popular movement to have a holiday to commemorate the signing of The Charter, in a similar way to the American 4th of July holiday; however, very few went as far as Sharp.

The myth-busters

Although there was a popular movement to resist the sovereignty of Parliament based on The Charter, a great number of people still thought that The Charter was over-rated. Cartwright pointed out in 1774 that Magna Carta could not possibly have existed unless there was a firm constitution beforehand to facilitate its use. He went even further later, and claimed that The Charter was not even part of the constitution but merely a codification of what the constitution was at the time. Cartwright suggested that there should be a new Magna Carta based on equality and rights for all, not just for landed persons.

There were, though, certain provisions, such as Clauses 23 and 39, which were not only still valid then, but still form the basis of important rights in the present English law. Undeniably, though, the importance of Magna Carta was diminishing and the arguments for having a fully sovereign Parliament were increasingly accepted. Many in the House still supported The Charter, such as Sir Francis Burdett, who in 1809 called for a return to the constitution of Magna Carta and denounced the house for taking proceedings against the radical John Gale Jones, who had denounced the house for acting in contravention of Magna Carta. Burdett was largely ignored, as by this stage Magna Carta had largely lost its appeal, but he continued, claiming that the Long Parliament (1640-60) had usurped all the power then enjoyed by the Parliament of the time. He stated that Parliament was constantly contravening Magna Carta (although he was referring to its judicial, not legislative, practice) which it did not have the right to do. He received popular support and there were riots across London when he was arrested for these claims. Again, a popular print circulated of him being arrested while teaching his son about Magna Carta.

The Compromise

The major breakthrough occurred in 1828 with the passing of the first Offences Against the Person Act, which for the first time repealed a clause of Magna Carta, namely Clause 36. With the myth broken, in one hundred and fifty years nearly the whole charter was repealed, leaving just Clauses 1, 13, 39, and 63 still in force today after the Statute Laws (Repeals) Act was passed (although interestingly, at the same time as the moon landings, possibly to distract the public from the repealing The Charter).

With the popular movements being in favor of the liberties of The Charter, and Parliament trying to establish their own sovereignty, there needed to be some sort of action in order to swing the balance in favor of one or the other. However all that occurred was the Reform Act 1832, which was such a compromise that it ended up pleasing no one. Due to their disappointment in the Reform Act 1832, a group was founded calling itself the Chartists; they called for a return to the constitution of Magna Carta and eventually culminated in a codification of what they saw as the existing rights of the People; the People's Charter. At a rally for the Chartists in 1838, the Reverend Raynor demanded a return to the constitution of The Charter; freedom of speech, worship, and congress. This is a perfect example of how the idea of Charter went so far beyond the actual content of The Charter, it depicted for many people the idea of total liberty, whereas the actual liberties granted by The Charter were very limited and not at all intended to be applied equally. It was this over-exaggeration of The Charter that eventually led to its downfall. The more people expected to get from The Charter, the less Parliament was willing to attempt to cater to this expectation, and eventually writers such as Tom Paine refuted the claims of those such as the Chartists. This meant that the educated were no longer supporting any of these claims, and therefore the myth gradually faded into obscurity, and the final claim against sovereignty of Parliament was erased, and the road was open for establishing this doctrine.

Influences on later constitutions

Many later attempts to draft constitutional forms of government, including the United States Constitution, trace their lineage back to this source document. The United States Supreme Court has explicitly referenced Lord Coke's analysis of Magna Carta as an antecedent of the Sixth Amendment's guarantee of a speedy trial.[3]

Magna Carta has influenced international law as well: Eleanor Roosevelt referred to the Universal Declaration of Human Rights as "a Magna Carta for all mankind."

Magna Carta and the Jews in England

Magna Carta contained two articles related to money lending and Jews in England. Jewish involvement with money lending caused Christian resentment, because the Church forbade the lending of money at interest (known at the time as usury); it was seen as vice (such as gambling, an un-Christian way to profit at others' expense) and was punishable by excommunication. However, Jews, as non-Christians, could not be excommunicated and were thus in a legal gray area. Secular leaders, unlike the Church, tolerated the practice of Jewish usury because it gave the leaders opportunity for personal enrichment. This resulted in a complicated legal situation: Debtors were frequently trying to bring their Jewish creditors before Church courts, where debts would be absolved as illegal, while the Jews were trying to get their debtors tried in secular courts, where they would be able to collect plus interest. The relations between the debtors and creditors would often become very nasty. There were many attempts over centuries to resolve this problem, and Magna Carta contains one example of the legal code of the time on this issue:

If one who has borrowed from the Jews any sum, great or small, die before that loan be repaid, the debt shall not bear interest while the heir is under age, of whomsoever he may hold; and if the debt fall into our hands, we will not take anything except the principal sum contained in the bond. And if anyone die indebted to the Jews, his wife shall have her dower and pay nothing of that debt; and if any children of the deceased are left under age, necessaries shall be provided for them in keeping with the holding of the deceased; and out of the residue the debt shall be paid, reserving, however, service due to feudal lords; in like manner let it be done touching debts due to others than Jews.

After the Pope annulled Magna Carta, future versions contained no mention of Jews. Jews were seen by the Church as a threat to their authority, and the welfare of Christians, because of their special relationship to Kings as moneylenders. "Jews are the sponges of kings," wrote the theologian William de Montibus, "they are bloodsuckers of Christian purses, by whose robbery kings dispoil and deprive poor men of their goods." Thus the anti-semitic wording as seen in Magna Carta originated in part because of Christian nobles who permitted the otherwise illegal activity of usury, a symptom of the larger ongoing power struggle between Church and State during the Middle Ages.

Copies

Numerous copies were made each time it was issued, so all of the participants would each have one—in the case of the 1215 copy, one for the royal archives, one for the Cinque Ports, and one for each of the then 40 counties. Several of those still exist and some are on permanent display. If there ever was one single master copy, or original version, of Magna Carta sealed by King John in 1215, it has not survived. Four contemporaneous copies (known as "exemplifications") remain, all of which are located in the UK: One in the British Library, one in the House of Commons, one in Lincolm Cathedral and one in Salisbury Cathedral.

Thirteen other versions of Magna Carta dating to 1297 or earlier survive, including four from 1297. Durham Cathedral possesses 1216, 1217, and 1225 copies.

Participant list

Twenty five Barons, thirteen Bishops, twenty Abbots, the Master of the Knights Templar in England and a Sub-deacon of the Papal household, were party to Magna Carta.[4]

Notes

  1. The UK Statute Law Database, Results Within Legislation. Retrieved June 22, 2007.
  2. Wolf, Lord Chief Justice "Magna Carta: A Precedent for Recent Constitutional Changes," Department for Constitutional Affairs (UK) 15 June 2005 Magna Carta: A Precedent for Recent Constitutional Changes retrieved April 9, 2007
  3. U.S. Supreme Court Reports KLOPFER v. NORTH CAROLINA, 386 U.S. 213 (1967), Find Law KLOPFER v. NORTH CAROLINA, 386 U.S. 213 (1967). Retrieved April 9, 2007
  4. National Archives and Records Administration, Magna Charta translation. Retrieved April 9, 2007.

References

  • Breay, Clair Magna Carta: Manuscripts and Myths. London: British Library, 2002. ISBN 978-0712347433
  • Brooks, David L From Magna Carta to the Constitution: Documents in the Struggle for Liberty. Little Rock, AR: Laissez Faire Books, 1993. ISBN 978-0930073077
  • Davis, G. R. C Magna Carta. London: The British Museum, 1963.
  • Dickinson, J. C The Great Charter. London: Published for the Historical Association by G. Philip, 1955.
  • Evans, Harry "Bad King John and the Australian Constitution." Senate: Parliament of Australia, 17 Oct 1997.
  • Holt, J.C. Magna Carta. Cambridge: Cambridge University Press, 1992. ISBN 0-521-27778-7
  • Jennings, Ivor Magna Carta and its influence in the world today. NY: H.M. Stationary Office, 1965.
  • Howard, A. E. Dick Magna Carta: Text and Commentary. Charlottesville, VA: Bibliographical Society of University of Virginia, 1997. ISBN 978-0813901213
  • Lyon, A. Constitutional History of the United Kingdom. London ; Portland, OR: Cavendish Pub, 2003. ISBN 9781859417461
  • Williams, G. and J Ramsden. Ruling Britannia, A Political History of Britain 1688-1988 NY: Longman, 1990. ISBN 9780582484856

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