Magna Carta Explained

Document Name:Magna Carta
Date Created:1215
Location Of Document:Various copies

Magna Carta, also called Magna Carta Libertatum, is an English charter, originally issued in the year 1215 and reissued later in the 13th century in modified versions. The later versions excluded the most direct challenges to the monarch's authority that had been present in the 1215 charter. The charter first passed into law in 1225; the 1297 version, with the long title (originally in Latin) The Great Charter of the Liberties of England, and of the Liberties of the Forest, still remains on the statute books of England and Wales.

The 1215 charter required King John of England to proclaim certain liberties, and accept that his will was not arbitrary, for example by explicitly accepting that no "freeman" (in the sense of non-serf) could be punished except through the law of the land, a right which is still in existence today.

Magna Carta was the first document forced onto an English King by a group of his subjects, the feudal barons, in an attempt to limit his powers by law and protect their privileges. It was preceded and directly influenced by the Charter of Liberties in 1100, in which King Henry I had specified particular areas wherein his powers would be limited.

Despite its recognised importance, by the second half of the 19th century nearly all of its clauses had been repealed in their original form. Three clauses remain part of the law of England and Wales, however, and it is generally considered part of the uncodified constitution. Lord Denning described it as "the greatest constitutional document of all times – the foundation of the freedom of the individual against the arbitrary authority of the despot".[1] In a 2005 speech, Lord Woolf described it as "first of a series of instruments that now are recognised as having a special constitutional status", the others being the Habeas Corpus Act, the Petition of Right, the Bill of Rights, and the Act of Settlement.

The charter was an important part of the extensive historical process that led to the rule of constitutional law in the English speaking world, and it was Magna Carta (rather than other early concessions by the monarch) which survived to become a "sacred text".[2] In practice, Magna Carta in the medieval period did not in general limit the power of kings, but by the time of the English Civil War it had become an important symbol for those who wished to show that the King was bound by the law. It influenced the early settlers in New England[3] and inspired later constitutional documents, including the United States Constitution.

The Great Charter of 1215

Rebellion and creation of the document

See main article: John, King of England. Some barons began to conspire against him in 1209 and 1212; promises made to the northern barons and John's submission to universal rule of the papacy in 1213 delayed a French invasion.[4] Over the course of his reign a combination of higher taxes, unsuccessful wars that resulted in the loss of English barons' titled possessions in Normandy following the Battle of Bouvines (1214), and an ongoing conflict with the Pope Innocent III had made King John unpopular with many of his barons.

In 1215 some of the most important barons engaged in open rebellion against their King. Such rebellions were not particularly unusual in this period. Every king since William the Conqueror had faced rebellions. However, in every previous case there had been an obvious alternative monarch around whom the rebellion could rally. In 1215, however, John had no obvious replacement. Arthur of Brittany would have been a possibility, if he had not disappeared (widely believed to have been murdered on the orders of John). The next closest possible alternative was Prince Louis of France, but as the husband of Henry II's granddaughter, his claim was tenuous, and the English had been at war with the French for thirty years. Instead of a claimant to the throne, the barons decided to base their rebellion around John's oppressive government. In January 1215, the barons made an oath that they would "stand fast for the liberty of the church and the realm", and they demanded that King John confirm the Charter of Liberties, from what they viewed as a golden age.[5]

John prevaricated. During negotiations between January and June 1215, a document was produced, which historians have termed 'The Unknown Charter of Liberties',[6] seven of the articles of which would later appear in the 'Articles of the Barons' and the Runnymede Charter.[7] In May, King John offered to submit issues to a committee of arbitration with Innocent III as the supreme arbiter,[8] but the barons continued in their defiance. With the support of Prince Louis the French Heir and of King Alexander II of the Scots, they entered London in force on 10 June 1215,[9] with the city showing its sympathy with their cause by opening its gates to them. They, and many of the moderates not in overt rebellion, forced King John to agree to a document later known as the 'Articles of the Barons', to which his Great Seal was attached in the meadow at Runnymede on 15 June 1215. In return, the barons renewed their oaths of fealty to King John on 19 June 1215.

In return for King John's submission to his papal and universal authority, Innocent III declared the Magna Carta annulled, though many English Barons did not accept this action.

The contemporary, but unreliable[10] chronicler, Roger of Wendover, recorded the events in his Flores Historiarum. A formal document to record the agreement was created by the royal chancery on 15 July: this was the original Magna Carta, though it was not known by that name at the time. An unknown number of copies of it were sent out to officials, such as royal sheriffs and bishops.

Clause 61

The 1215 document contained a large section that is now called clause 61 (the original document was not actually divided into clauses). This section established a committee of 25 barons who could at any time meet and overrule the will of the King if he defied the provisions of the Charter, seizing his castles and possessions if it was considered necessary. This was based on a medieval legal practice known as distraint, but it was the first time it had been applied to a monarch.

Distrust between the two sides was overwhelming. What the barons really sought was the overthrow of the King; the demand for a charter was a "mere subterfuge".[11] Clause 61 was a serious challenge to John's authority as a ruling monarch. He renounced it as soon as the barons left London; Pope Innocent III also annulled the "shameful and demeaning agreement, forced upon the King by violence and fear." He rejected any call for restraints on the King, saying it impaired John's dignity. He saw it as an affront to the Church's authority over the King and the 'papal territories' of England and Ireland, and he released John from his oath to obey it. The rebels knew that King John could never be restrained by Magna Carta and so they sought a new King.[12]

England was plunged into a civil war, known as the First Barons' War. With the failure of Magna Carta to achieve peace or restrain John, the barons reverted to the more traditional type of rebellion by trying to replace the monarch they disliked with an alternative. In a measure of some desperation, despite the tenuousness of his claim and despite the fact that he was French, they offered the crown of England to Prince Louis of France.[13]

As a means of preventing war Magna Carta was a failure, rejected by most of the barons,[14] and was legally valid for no more than three months.[15] It was the death of King John in 1216 which secured the future of Magna Carta.[16]

Participant list

Barons, Bishops and Abbots who were party to Magna Carta.[17]

Barons – surety for the enforcement of Magna CartaBishops – witnessessAbbots – witnessess
1William d'Aubigny, Lord of Belvoir CastleStephen Langton, Archbishop of Canterbury, Cardinal of the Holy Roman Churchthe Abbot of St Edmunds
2Roger Bigod, Earl of Norfolk and SuffolkHenry de Loundres, Archbishop of Dublinthe Abbot of St Albans
3Hugh Bigod, Heir to the Earldoms of Norfolk and SuffolkWilliam of Sainte-Mère-Église, Bishop of Londonthe Abbot of Bello
4Henry de Bohun, Earl of HerefordJocelin of Wells, Bishop of Bath and Wellsthe Abbot of St Augustine's in Canterbury
5Richard de Clare, Earl of HertfordPeter des Roches, Bishop of Winchesterthe Abbot of Evesham
6Gilbert de Clare, heir to the earldom of HertfordHugh de Wells, Bishop of Lincolnthe Abbot of Westminster
7John FitzRobert, Lord of Warkworth CastleHerbert Poore (aka "Robert"), Bishop of Salisburythe Abbot of Peterborough
8Robert Fitzwalter, Lord of Dunmow CastleBenedict of Sausetun, Bishop of Rochesterthe Abbot of Reading
9William de Fortibus, Earl of AlbemarleWalter de Gray, Bishop of Worcesterthe Abbot of Abingdon
10William Hardel, **Mayor of the City of LondonGeoffrey de Burgo, Bishop of Elythe Abbot of Malmesbury Abbey
11William de Huntingfield, Sheriff of Norfolk and SuffolkHugh de Mapenor, Bishop of Herefordthe Abbot of Winchcomb
12John de Lacy, Lord of Pontefract CastleRichard Poore, Bishop of Chichester (brother of Herbert/Robert above)the Abbot of Hyde
13William de Lanvallei, Lord of Standway Castlethe Abbot of Chertsey
14William Malet, Sheriff of Somerset and Dorsetthe Abbot of Sherborne
15Geoffrey de Mandeville, Earl of Essex and Gloucesterthe Abbot of Cerne
16William Marshall Jr, heir to the earldom of Pembrokethe Abbot of Abbotebir
17Roger de Montbegon, Lord of Hornby Castle, Lancashirethe Abbot of Middleton
18Richard de Montfichet, Baronthe Abbot of Selby
19William de Mowbray, Lord of Axholme Castlethe Abbot of Cirencester
20Richard de Percy, Baronthe Abbot of Hartstary
21Saire/Saher de Quincy, Earl of Winchester
22Robert de Roos, Lord of Hamlake Castle
23Geoffrey de Saye, Baron
24Robert de Vere, heir to the earldom of Oxford
25Eustace de Vesci, Lord of Alnwick Castle

Others

Magna Carta of Chester

The Runnymede Charter of Liberties did not apply to Chester, which at the time was a separate feudal domain. Earl Ranulf granted his own Magna Carta.[18] Some of its articles were similar to the Runnymede Charter.[19]

The Great Charter 1216–1369

The Charter 1216

King John's nine-year-old son Henry was crowned King of England in Gloucester Abbey, though much of England lay under the usurper Prince Louis. The papal legate Guala Bicchieri declared the struggle against Louis and the Barons a holy war,[20] and the loyalists led by William Marshal rallied around the new King. Earl Ranulf of Chester left the Regency to Marshall. Marshall and Guala issued a Charter of Liberties, based on the Runnymede Charter, in the King's name on 12 November 1216 as a Royal concession, in an attempt to undermine the rebels.[21]

The Charter differed from that of 1215 in only having 42 as compared to 61 clauses; most notably the infamous article 61 of the Runnymede Charter was removed. The Charter was also issued separately for Ireland.

The Charters 1217: the origins of the name Magna Carta

Following the end of the First Barons War and the Treaty of Lambeth, the Charter of Liberties (carta libertatum) was issued again in the manner of 1216, again amended and issued separately for Ireland. The 42 clauses of the 1216 issue were expanded to 47.

Significantly, a fragment of the original charter would be expanded with new material to form a complementary charter, the Charter of the Forest; the two Charters would thereafter be linked. Magna carta libertatum was then used by scribes to differentiate the larger and more important charter of common liberties from the Forest Charter.[22] The term was used retrospectively to describe the previous Charters, with what had previously been described as carta libertatum becoming known simply as Magna Carta.

The Great Charter 1225

Having reached the age of majority, King Henry III was called upon to confirm the Charters. Henry reissued Magna Carta in a shorter version with only 37 articles, as a concession of liberties in return for a fifteenth part of moveable goods.[3] This was the first version of the Charter to enter English law.[23] The Charter of Liberties included a new statement that the Charter had been issued spontaneously and of the King's own free will. In 1227, Henry III declared all future charters had to be issued under his own seal and state under what warrant they were claimed; this proclamation questioned the validity of all previous acts done in his name or his predecessors.[24] It was not until 1237, and the carta parva, that both of the 1225 Charters were confirmed and granted in perpetuity.[25]

The Great Charter 1297: Statute

Edward I of England reissued the Charters of 1225 in 1297 in return for a new tax.[26] "Constitutionally, the Magna Carta of Edward I is the most important".[27] This version remains in Statute today (albeit with most articles now repealed—see below).

Confirmatio Cartarum and Articuli super Cartas

The Confirmatio Cartarum (Confirmation of Charters) was issued by Edward I in 1297, and was similar to the parva carta issued by Henry III in 1237. In the Confirmation, Edward reaffirmed Magna Carta and the Forest Charter[28] as a concession for tax money. As part of the Remonstrances the nobles sought to add another document the De Tallagio to the Charters but without success.[29] The principle of taxation by consent was reinforced, however the precise manner of that consent was not laid down.[30]

Pope Clement V annulled the Confirmatio Cartarum in 1305.[31]

As part of the reconfirmation of the Charters in 1300 an additional document was granted, the Articuli super Cartas (The Articles upon the Charters). It was composed of 20 articles and sought in part to deal with the problem of enforcing the Charters.[32] In 1305 Edward I took Clement V's Papal bull annulling the Confirmatio Cartarum to effectively apply to the Articuli super Cartas though it was not specifically mentioned.[33]

The Six Statutes

During the reign of Edward III six measures were passed between 1331 and 1369 which were later known as the 'Six Statutes'. They sought to clarify certain parts of the Charters. In particular, the third statute, of 1354, redefined clause 29, with 'free man' becoming "no man, of whatever estate or condition he may be", and introduced the phrase "due process of law" for 'lawful judgement of his peers or the law of the land'.[34]

Later History of the Charter

Reconfirmations of the Charter

The impermanence of the Charter required successive generations to petition the King to reconfirm his Charter, and hopefully abide by it. Between the 13th and 15th centuries Magna Carta would have a history of being reconfirmed, 32 times according to Sir Edward Coke, but possibly as many as 45 times.[35] The Charter was last confirmed in 1423 by Henry VI.

Repeal of articles of the Charter

The repeal of clause 26 in 1829, by the Offences against the Person Act 1828 (9 Geo. 4 c. 31 s. 1), was the first time a clause of Magna Carta was repealed. With the document's perceived inviolability broken, in the next 140 years nearly the whole charter was repealed, leaving just Clauses 1, 9, and 29 still in force after 1969. Most of it was repealed in England and Wales by the Statute Law Revision Act 1863, and in Ireland by the Statute Law (Ireland) Revision Act 1872.

Magna Carta 1225 ClauseRunnymede Charter ClauseDate Repealed
1Iextant
2IIStatute Law Revision Act 1863 and Statute Law (Ireland) Revision Act 1872
3IIIStatute Law Revision Act 1863 and Statute Law (Ireland) Revision Act 1872
4IVStatute Law Revision Act 1863 and Statute Law (Ireland) Revision Act 1872
5VStatute Law Revision Act 1863 and Statute Law (Ireland) Revision Act 1872
6VIStatute Law Revision Act 1863 and Statute Law (Ireland) Revision Act 1872
7VII, VIIIAdministration of Estates Act 1925, Administration of Estates Act (Northern Ireland) 1955 and Statute Law (Repeals) Act 1969
8IXStatute Law (Repeals) Act 1969
9XIIIextant
10XVIStatute Law Revision Act 1948
11XVIICivil Procedure Acts Repeal Act 1879
12XVIIICivil Procedure Acts Repeal Act 1879
13Statute Law Revision Act 1863 and Statute Law (Ireland) Revision Act 1872
14XX, XXI, XXIICriminal Law Act 1967 and Criminal Law Act (Northern Ireland) 1967
15XXIIIStatute Law (Repeals) Act 1969
16XXXXVIIStatute Law (Repeals) Act 1969
17XXIVStatute Law Revision Act 1892
18XXVICrown Proceedings Act 1947
19XXVIIIStatute Law Revision Act 1863 and Statute Law (Ireland) Revision Act 1872
20XIXStatute Law Revision Act 1863 and Statute Law (Ireland) Revision Act 1872
21XXX, XXXIStatute Law Revision Act 1863 and Statute Law (Ireland) Revision Act 1872
22XXXIIStatute Law Revision Act 1948
23XXXIIIStatute Law (Repeals) Act 1969
24XXXIVStatute Law Revision Act 1863 and Statute Law (Ireland) Revision Act 1872
25XXXVStatute Law Revision Act 1948
26XXXVIOffences against the Person Act 1828 and Offences against the Person (Ireland) Act 1829
27XXXVIIStatute Law Revision Act 1863 and Statute Law (Ireland) Revision Act 1872
28XXXVIIIStatute Law Revision Act 1863 and Statute Law (Ireland) Revision Act 1872
29XXXIX,XXXXextant
30XXXXIStatute Law (Repeals) Act 1969
31XXXXIIIStatute Law Revision Act 1863 and Statute Law (Ireland) Revision Act 1872
32Statute Law Revision Act 1887
33XXXXVIStatute Law Revision Act 1863 and Statute Law (Ireland) Revision Act 1872
34LIVStatute Law Revision Act 1863 and Statute Law (Ireland) Revision Act 1872
35Sheriffs Act 1887
36Statute Law Revision Act 1863 and Statute Law (Ireland) Revision Act 1872
37LXStatute Law Revision Act 1863 and Statute Law (Ireland) Revision Act 1872

Content of the Charters

Magna Carta was originally written in Latin. A large part of the Charter at Runnymede was copied, nearly word for word, from the Charter of Liberties of Henry I, issued when Henry became king in 1100, in which he said he would respect certain rights of the Church and the barons, for example not forcing heirs to purchase their inheritances.

As the Charter went through various issues many of the clauses included in the Runnymede charter were removed. Some clauses would form a supplementary Charter in 1217, the Charter of the Forest.

It is worth emphasising that the 1215 charter was not numbered and was not divided into paragraphs or separate clauses. The numbering system used today was created by Sir William Blackstone in 1759,[36] and therefore should not be used to draw any conclusions regarding the intentions of the original creators of the charter.

Clauses still in force today

The clauses of the 1297 Magna Carta which are still on statute are

Clauses in Runnymede Charter but not in later Charters

Challenges to the King's power

Clauses 12 and 14 of the 1215 charter state that the king will accept the "common counsel of our realm" when levying and assessing an aid or a scutage. Clause 14 goes into detail about how exactly the archbishops, bishops, abbots, earls and greater barons should be consulted. These clauses effectively meant that the monarch had to ask before raising new taxes. The later charters merely said that "Scutage furthermore is to be taken as it used to be", although in practice the convention arose after Magna Carta that Parliament would be consulted by the monarch before raising new taxes.

Clause 61 of the 1215 charter states: "The barons shall choose any twenty-five barons of the realm they wish, who with all their might are to observe, maintain and cause to be observed the peace and liberties which we have granted and confirmed to them by this our present charter". The clause goes on to say that if the king does not keep to the charter, the twenty five barons shall seize "castles, lands and possessions... until, in their judgement, amends have been made". "Anyone in the land" would be permitted by the king to swear an oath to the twenty five to obey them in these matters, and the king was in fact supposed to order people to do so even if they didn't want to swear an oath to the twenty five barons.

The barons were trying to stop John going back on his word after agreeing to the charter, but if those who rebelled against him were able to choose a group who would have the power to seize his castles if they thought it necessary, "then the king had in effect been dethroned". No king would have agreed to this except as a manoeuvre to gain time, and the inclusion of this clause destroyed any chance of the original Magna Carta keeping the peace in the long term.[38]

Clause 61 was removed from all later versions of the charter. Forty years later, after another confrontation between king and barons, the Provisions of Oxford forced on the king a council of twenty four members, 12 selected by the crown, 12 by the barons, which would then elect a king's council of fifteen members; this however was also annulled when Henry III finally won that power struggle.

Clauses in Runnymede Charter and in 1216/1217 Charter but not in 1225/1297 Charter

Clauses in Runnymede Charter and 1225/1297 Charter but since repealed

All of the remaining parts of the 1215 charter appear substantially unchanged in the 1225/1297 charter which became law and is still on the statute book. All except the three clauses which are still in force today were eventually repealed however, most in the 19th century. Many provisions have no bearing in the world today, since they deal with feudal liberties. Some clauses remained relevant but were replaced by later legislation which gave similar rights. Using the 1215 clause numbers:

Clauses in the 1225/1297 Charter but not in the Runnymede Charter

There are a few clauses which are in the 1225/1297 charter but not in the 1215 charter. These have also since been repealed. Using the 1297 clause numbers:

Medieval and Tudor period

The judgement of 1387 confirmed the supremacy of the Royal Prerogative within the constitution.[39] By the mid 15th century Magna Carta ceased to occupy a central role in English political life.[34] In part this was also due to the rise of an early version of Parliament and to further statutes, some which were based on the principle of Magna Carta. The Charter, however remained a text for scholars of law. The Charter in the statute books was correctly thought to have arisen from the reign of Henry III and was seen as no more special than any other statute and could be amended and removed. It was not seen (as it was later) as an entrenched set of liberties guaranteed for the people against the Government. Rather, it was an ordinary 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.

The Tudor period would see a growing interest in history. Tudor historians would rediscover the Barnwell chronicler who was more favourable to King John than other contemporary texts. John Bale and Shakespeare would both write plays on King John. Tudor historians were not inclined to regard rebellion as anything but a crime. Those who supported Henry VIII’s break with Rome “viewed King John in a positive light as a hero struggling against the papacy, they showed little sympathy for the Great Charter or the rebel barons”.[40]

The first printed edition of Magna Carta was probably the Magna Carta cum aliis Antiquis Statutis of 1508 by Richard Pynson.[41] George Ferrers would publish the first unabridged English language edition of Magna Carta in 1534, and effectively established the numbering of the Charter into 37 chapters; an abridged English language edition had previously been published by John Rastell in 1527.[42] By the end of the 16th century editions of the 1215 Charter would also be printed.

The Charter had no real effect until the Elizabethan era (1558–1603). Magna Carta again began to occupy legal minds, and it again began to shape how that government was run, but in a manner entirely different to that of earlier ages. William Lambarde published “what he thought were law codes of the Anglo-Saxon kings and William the conqueror”.[43] Lambarde would begin the process of misinterpreting English history, soon taken up by others, incorrectly dating documents and giving parliament a false antiquity. Francis Bacon would claim that Clause 39 of the 1215 Charter was the basis of the jury system and due process in a trial. Robert Beale, James Morice, Richard Cosin and the Puritans[44] began to misperceive Magna Carta as a ‘statement of liberty’, a 'fundamental law' above all law and government. In 1581 Arthur Hall, MP would be one of the first to suffer under this emerging new ideology, when he correctly questioned the antiquity of the House of Commons[45] [46] and was without precedent expelled from Parliament.

Edward Coke's opinions

One of the first respected jurists to write seriously about the great charter was Edward Coke. He was influential in the way Magna Carta was perceived throughout the Tudor and Stuart periods though his views were challenged during his lifetime by Lord Ellesmere and later in the century by Robert Brady. Coke used the 1225 issue of the Charter.

Coke "reinterpreted or misinterpreted" Magna Carta "misconstruing its clauses anachronistically and uncritically".[47] He would interpret liberties to be much the same as individual liberty.[48] The historian J.C. Holt excused Coke on the grounds that the Charter and its history had itself become 'distorted'.[49]

Coke would be instrumental in framing the Petition of Right, which would be a substantial supplement to Magna Carta's liberties. During the debates on the matter Coke famously sought to deny the King's sovereign rights with the claim that "Magna Carta is such a fellow, that he will have no 'sovereign'"; he believed the statutes (not the King) were absolute.[50]

17th and 18th Centuries

Whilst Sir Edward Coke would take the lead in reinterpreting Magna Carta he would soon be joined by others with a similar ideological stance, resulting in the concept of an 'ancient constitution' which entailed belief in fundamental laws supposedly existing since time immemorial and a belief in the antiquity of Parliament.[51] These beliefs would be used to challenge the constitution as it existed under the Stuart Kings.

John Selden would link habeas corpus to Magna Carta[52] during Darnell's Case. Sir Henry Spelman, who can be largely credited with first formulating a concept of feudalism (which would ironically be later used to attack the idea of an ancient constitution, notably by Robert Brady), sought to place the origins of Common Law in Anglo-Saxon laws.[53] Antiquarians would seek out documents to support the views of their compatriots, such as Sir Robert Cotton, whose collection of manuscripts would later form the basis for the British Library, and who discovered two original copies of King John’s Charter.

The Petition of Right of 1628 sought to add to Magna Carta in the manner of the Articuli super Cartas or the Six Statutes. Charles I however, did not grant it as law and he was under no legal restriction.[54] The problem as before in history was that the King was not bound by the law as adherents of Magna Carta believed. As before in history armed force would be used, first in 1642–49 and again in 1689.

With the advent of the republic it was questionable whether Magna Carta still applied. John Milton called for “great actions, above the form of law and custom”. Whilst Oliver Cromwell had much disdain for Magna Carta, at one point describing it as "Magna Farta" to a defendant who sought to rely on it[55] he agreed to rule with the advice and consent of his council.[56]

Different radical groups held differing opinions of Magna Carta. The Levellers rejected history and law as presented by their contemporaries, holding instead to an ‘anti-Normanism’ viewpoint.[57] John Lilburne regarded Magna Carta as being less than the freedoms which supposedly existed under the Anglo-Saxons before being crushed by the Norman yoke. Richard Overton would describe Magna Carta as a “a beggarly thing containing many marks of intolerable bondage”.[58] Both however saw Magna Carta as a valuable declaration of liberties which could be used against governments they disagreed with. Lilburne said "the ground of my freedom, I build upon the Grand Charter of England", while Overton said that when arrested, he hung on to his copy of Coke on Magna Carta, shouting "murder, murder, murder" as they wrested "the Great Charter of England's Liberties and Freedoms from me".[59] Gerrard Winstanley leader of the more extreme Diggers stated “The best lawes that England hath, [viz., the Magna Carta] were got by our Forefathers importunate petitioning unto the kings that still were their Task-masters; and yet these best laws are yoaks and manicles, tying one sort of people to be slaves to another; Clergy and Gentry have got their freedom, but the common people still are, and have been left servants to work for them.”

The first attempt at a proper Historiography was undertaken by Robert Brady (writer)[60] who refuted the supposed antiquity of parliament and the belief in the immutable continuity of the law, and realised the liberties of the Charter were limited and were effective only because it was the grant of the King; by putting Magna Carta in historical context he questioned its contemporary political relevance.[61] However, Brady’s history would not survive the Glorious Revolution which “marked a setback for the course of English historiography”.[62]

The Glorious Revolution reinforced the century’s ideological interpretations of history, which would later become known as the Whig interpretation of history. Reinforced with Lockean concepts the Whigs believed England’s constitution to be a Social contract, based on documents such as Magna Carta, the Petition of Right and The Bill of Rights.[63] 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, it showed that Parliament no longer considered its previous statutes unassailable, as this act provided that the parliamentary term was to be seven years, whereas fewer than twenty-five years had passed since the Triennial Act (1694), which provided that a parliamentary term was to be three years. It also greatly extended the powers of Parliament. Under this new constitution Monarchal absolutism was replaced by Parliamentary supremacy. It was quickly realised that Magna Carta stood in the same relation to the King-in-Parliament as it had to the King without Parliament. This supremacy would be challenged by the likes of Granville Sharp. Sharp regarded Magna Carta to be a fundamental part of the constitution, and that it would be treason to repeal any part of it. Sharp also held that the Charter prohibited slavery.[64]

Sir William Blackstone published a critical edition of the 1215 Charter in 1759, and gave it the numbering system still used today.[36]

In 1763 an MP, John Wilkes was arrested for writing an inflammatory pamphlet, No. 45, 23 April 1763; he cited Magna Carta incessantly. Lord Camden denounced the treatment of Wilkes as a contravention of Magna Carta.

Prophet of a new revolutionary age, Thomas Paine in his Rights of Man would disregard Magna Carta and the Bill of Rights on the grounds they were not a written constitution devised by elected representatives.

The United States of America

When Englishmen left their homeland for the new world, they brought with them charters establishing the colonies. The Massachusetts Bay Company charter for example stated the colonists would "have and enjoy all liberties and immunities of free and natural subjects." The Virginia Charter of 1606 (which was largely drafted by Sir Edward Coke) stated the colonists would have all "liberties, franchises and immunities" as if they had been born in England. The Massachusetts Body of Liberties contained similarities to clause 29 of Magna Carta, and the Massachusetts General Court in drawing it up viewed Magna Carta as the chief embodiment of English common law.[65] The other colonies would follow their example. In 1638 Maryland sought to recognise Magna Carta as part of the law of the province but it was not granted by the King.[66]

In 1687 William Penn published The Excellent Privilege of Liberty and Property: being the birth-right of the Free-Born Subjects of England which contained the first copy of Magna Carta printed on American soil. Penn's comments reflected Coke's, indicating a belief that Magna Carta was a fundamental law.[67] The colonists drew on English lawbooks leading them to an anachronistic interpretation of Magna Carta, believing it guaranteed trial by jury and habeas corpus.[68]

The development of Parliamentary sovereignty in the British Isles did not constitutionally affect the Thirteen Colonies, which retained an adherence to English common law, but it would come to directly affect the relationship between Britain and the colonies.[69] When American colonists raised arms against Britain, they were fighting not so much for new freedom, but to preserve liberties and rights, as believed to be enshrined in Magna Carta and as later included in the Bill of Rights. American Revolutionaries would supplement this with ideas of natural right.

In 1787 when the revolutionaries gathered to draft a constitution they built upon the legal system they knew and admired, English common law, and on Lockean philosophy.

The American Constitution is the "supreme law of the land", recalling the manner in which Magna Carta had come to be regarded as fundamental law. This heritage is quite apparent. In comparing Magna Carta with the Bill of Rights: the Fifth Amendment guarantees: "No person shall be deprived of life, liberty or property without due process of law." In addition, the United States Constitution included a similar writ in the Suspension Clause, article 1, section 9: "The privilege of the writ habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it." Each of these proclaim no man may be imprisoned or detained without proof that they did wrong. The Ninth Amendment to the United States Constitution states that, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The framers of the United States Constitution wished to ensure that rights they already held, such as those provided by Magna Carta, were not lost unless explicitly curtailed in the new United States Constitution.[70] [71]

The United States Supreme Court has explicitly referenced Lord Coke's analysis of Magna Carta as an antecedent of the Sixth Amendment's right to a speedy trial.

Nineteenth Century and beyond

Whilst radicals such as Sir Francis Burdett believed that Magna Carta could not be repealed, the 19th century would see the beginning of the repeal of many of the clauses of Magna Carta. The clauses were either obsolete and/or had been replaced by later legislation.

William Stubbs’s Constitutional History of England would be the high-water mark of the Whig interpretation of history. Stubbs believed that Magna Carta had been a major step in the shaping of the English people and he believed that the Barons at Runnymede were not just the Barons but the people.[72]

This view of history however, was passing. At the popular level William Howitt in Cassell's Illustrated history of England would note that it was fiction that King John’s Charter was the same Magna Carta as was on the statute books and stated that “The Barons, in fact, were amongst the greatest traitors that England ever produced”.[73] A more academic history was provided by Frederic William Maitland in History of English Law before the Time of Edward I which began to move Magna Carta away from the myth that had grown up around it and return it to its historical roots. In many literary representations of the medieval past, however, Magna Carta remained the foundation for many diverse constructions of English national identity. Some authors instrumentalized the medieval roots of the document to preserve the social status quo while others utilized the precious national inheritance to change perceived economic injustice.[74]

In 1904 Edward Jenks published in the Independent Review an article entitled “The Myth of Magna Carta” which undermined the traditionally accepted view of Magna Carta.[75] Historians like A. F. Pollard would agree with Jenks in considering Coke to have ‘invented’ Magna Carta, noting that the Charter at Runnymede had not meant popular liberty at all.[76]

Sellar and Yeatman in their parody 1066 and All That would play on the supposed importance of Magna Carta and its supposed universal liberty:. “Magna Charter was therefore the chief cause of Democracy in England, and thus a Good Thing for everyone (except the Common People)”.

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 British dominions, Australia and New Zealand,[77] Canada[78] (except Quebec), and formerly Union of South Africa and Southern Rhodesia, all looked back to Magna Carta in their law, and the Charter impacted generally on the states that evolved from the British Empire.[79]

Exemplifications

Numerous copies, known as "exemplifications", 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 Barons of the Cinque Ports, and one for each of the 40 counties of the time. If there ever was one single 'master copy' of Magna Carta sealed by King John in 1215, it has not survived. Four exemplifications of the original 1215 text remain, all of which are located in England, some on permanent display:

Other early versions of Magna Carta survive. Durham Cathedral possesses 1216, 1217, and 1225 copies.

A near-perfect 1217 copy is held by Hereford Cathedral and is occasionally displayed alongside the Mappa Mundi in the cathedral's chained library. Remarkably, the Hereford Magna Carta is the only one known to survive along with an early version of a Magna Carta 'users manual', a small document that was sent along with Magna Carta telling the Sheriff of the county to observe the conditions outlined in the document.

Four copies are held by the Bodleian Library in Oxford. Three of these are 1217 issues and one a 1225 issue. On 10 December 2007, these were put on public display for the first time. One of the Bodleian exemplifications from 1217 (once possibly held by Gloucester Cathedral) was displayed at San Francisco's California Palace of the Legion of Honor May 7 - June 6, 2011.

In 1952 the Australian Government purchased a 1297 copy of Magna Carta for £12,500 from King's School, Bruton, England.[86] This copy is now on display in the Members' Hall of Parliament House, Canberra. In January 2006, it was announced by the Department of Parliamentary Services that the document had been revalued down from A$40m to A$15m.

Only one copy (a 1297 copy in cursiva anglicana handwriting with the royal seal of Edward I) is in private hands; it was held by the Brudenell family, earls of Cardigan, who had owned it for five centuries, before being sold to the Perot Foundation in 1984. This copy, having been on long-term loan to the US National Archives, was auctioned at Sotheby's New York on 18 December 2007; The Perot Foundation sold it in order to "have funds available for medical research, for improving public education and for assisting wounded soldiers and their families." It fetched US$21.3 million, It was bought by David Rubenstein of The Carlyle Group,[87] who after the auction said, "I thought it was very important that the Magna Carta stay in the United States and I was concerned that the only copy in the United States might escape as a result of this auction." Rubenstein's copy is on permanent loan to the National Archives in Washington, D.C..[88]

The Rubenstein Magna Carta was removed from display 2 March 2011 for conservation treatment and reencasement in an anoxic environment provided by the National Institute of Standards and Technology (NIST) the government agency responsible for the 1950s encasement of the Charters of Freedom. After treatment and encasement by National Archives conservators, Magna Carta will be available to the public in March 2012.

Usage of the definite article, spelling "Magna Carta"

Since there is no direct, consistent correlate of the English definite article in Latin, the usual academic convention is to refer to the document in English without the article as "Magna Carta" rather than "the Magna Carta". According to the Oxford English Dictionary, the first written appearance of the term was in 1218: Latin: "Concesserimus libertates quasdam scriptas in '''magna carta''' nostra de libertatibus" (Latin: "We concede the certain liberties here written in our great charter concerning liberties"). However, "the Magna Carta" is frequently used in both academic and non-academic speech.

Especially in the past, the document has also been referred to as "Magna Charta", but the pronunciation was the same. "Magna Charta" is still an acceptable variant spelling recorded in many dictionaries due to continued use in some reputable sources. From the 13th to the 17th centuries, only the spelling "Magna Carta" was used. The spelling "Magna Charta" began to be used in the 18th century but never became more common despite also being used by some reputable writers.[89] [90]

Popular perceptions

Symbol and practice

Magna Carta is often a symbol for the first time the citizens of England were granted rights against an absolute king. However, in practice the Commons could not enforce Magna Carta in the few situations where it applied to them, so its reach was limited. Also, a large part of Magna Carta was copied, nearly word for word, from the Charter of Liberties of Henry I, issued when Henry I rose to the throne in 1100, which bound the king to laws which effectively granted certain civil liberties to the church and the English nobility.

Many documents form Magna Carta

Although Magna Carta is popularly thought of as the document which was forced upon King John in 1215, this version of the charter was almost immediately annulled. Later monarchs reissued the document, but without the most direct challenges to their power, and without the provisions which were intended to right immediate wrongs rather than make long-term constitutional changes. The version which forms part of English law is actually that of 1297. Magna Carta can therefore be used to refer to any one of several related (but not identical) 13th century documents, or indeed to the various charters as a whole.

The document was unsigned

Popular perception is that King John and the barons signed Magna Carta. There were no signatures on the original document, however, only a single seal placed by the king. The words of the charter – Data per manum nostram – signify that the document was personally given by the king's hand. By placing his seal on the document, the King and the barons followed common law that a seal was sufficient to authenticate a deed, though it had to be done in front of witnesses. John's seal was the only one, and he did not sign it. The barons neither signed nor attached their seals to it.

Perception in America

The document is also honoured in America, where it is an antecedent of the United States Constitution and Bill of Rights. In 1957, the American Bar Association erected the Runnymede Memorial. In 1976, the UK lent an original 1215 Magna Carta to the U.S. for its bicentennial celebrations, and also donated an ornate case to display it, which included a gold replica of Magna Carta. The case and gold replica are still on display in the U.S. Capitol Rotunda in Washington, D.C.[91]

21st-century Britain

In 2006, BBC History held a poll to recommend a date for a proposed "Britain Day". 15 June, which was the date of the original 1215 Magna Carta, received most votes, above other suggestions such as D-Day, VE Day, and Remembrance Day. The outcome was not binding, although the then Chancellor Gordon Brown had previously given his support to the idea of a new national day to celebrate British identity. It was used as the name for an anti-surveillance movement in the 2008 BBC series The Last Enemy. According to a poll carried out by YouGov in 2008, 45% of the British public do not know what Magna Carta is. However, its perceived guarantee of trial by jury and other civil liberties led to Tony Benn referring to the debate over whether to increase the maximum time terrorist suspects could be held without charge from 28 to 42 days as "the day Magna Carta was repealed".

See also

References

External links

Notes and References

  1. Danny Danziger & John Gillingham, "1215: The Year of Magna Carta"(2004 paperback edition) p278
  2. Holt, J.C. Magna Carta (1965) p21
  3. Clanchy, M.T. Early Medieval England Folio Society(1997)p139
  4. Thomas, Ralph V. Magna Carta Pearson 2003 pp39-40 & pp53-54
  5. Danziger & Gillingham (2006) pp.256–258
  6. Poole, A.L. From Domesday Book to Magna Carta, 1087–1216 Oxford University Press 2nd edition (1963) p471-472
  7. Holt, J.C. The Northerners: A Study in the Reign of King John Oxford University Press New edition (1992) p115
  8. Holt, J.C. The Northerners: A Study in the Reign of King John Oxford University Press New edition (1992) p112
  9. Within this article dates before 14 September 1752 are in the Julian calendar, later dates are in the Gregorian calendar.
  10. Holt, J.C. The Northerners: A Study in the Reign of King John Oxford University Press New edition (1992) p107
  11. Poole, A.L. From Domesday Book to Magna Carta, 1087–1216 Oxford University Press 2nd edition (1963) p479
  12. Carpenter, David A. The Minority of Henry III University of California Press (1992) p12
  13. Danziger & Gillingham (2004) p. 264
  14. Crouch, David William Marshal Longman (1996) p114
  15. Holt, J.C. Magna Carta Cambridge University Press 2nd Edition (1992) p1
  16. Clanchy, M.T. A History Of England: Early Medieval England Folio Edition (1997) p141
  17. http://www.archives.gov/exhibits/featured_documents/magna_carta/translation.html Magna Charta translation
  18. Hewitt, H.J. Mediaeval Cheshire Manchester University Press(1929) p9
  19. Holt, J.C. Magna Carta Cambridge University Press 2nd Edition (1992) pp379-380
  20. Clanchy, M.T. A History Of England: Early Medieval England Folio Edition (1997) p145
  21. Powicke, Sir Maurice The Thirteenth Century 1216–1307 Oxford University Press 2nd edition (1962) p5
  22. White, A.B. The Name Magna Carta in The English Historical Review (1915) pp472-475 and Note on the Name Magna Carta in The English Historical Review (1917) pp554-555
  23. Clanchy, M.T. A History Of England: Early Medieval England Folio Edition (1997) pp141-142
  24. Clanchy, M.T. A History Of England: Early Medieval England Folio Edition (1997) p147
  25. Holt, J.C. Magna Carta Cambridge University Press 2nd Edition (1992) p394
  26. Prestwich, Michael Edward I Yale (1997) p427
  27. [Halsbury Statutes]
  28. Web site: Confirmatio Cartarum. 30 November 2007.
  29. [Michael Prestwich|Prestwich, Michael]
  30. [Michael Prestwich|Prestwich, Michael]
  31. Menache, Sophia Clement V Cambridge University Press (2002)p253
  32. Robison, William B. and Fritze, Ronald H. (eds) Historical dictionary of late medieval England, 1272–1485 Greenwood Press (2002) entry on Articuli super Cartas pp34-35
  33. Prestwich, MichaelEdward I University of California Press (1988) pp547-548
  34. Turner, Ralph V. Magna Carta Pearson (2003) p123
  35. Thompson, Faith Magna Carta – Its Role in the Making of the English Constitution 1300–1629(1948)pp9-10
  36. Turner, Ralph V. Magna Carta Pearson (2003) pp67-68
  37. Gordon v. Justice Court, 12 Cal. 3d 323 (1974).
  38. Danziger, Gillingham 2004 p.262
  39. Turner, Ralph V. Magna Carta Pearson (2003) p127
  40. Turner, Ralph V. Magna Carta Pearson (2003) p138
  41. Thompson, Faith Magna Carta – Its Role in the Making of the English Constitution 1300–1629 University of Minnesota Press(1948) p146
  42. Thompson, Faith Magna Carta – Its Role in the Making of the English Constitution 1300–1629 University of Minnesota Press(1948) p147-149
  43. Turner, Ralph V. Magna Carta Pearson (2003) p140
  44. Thompson, Faith Magna Carta – Its Role in the Making of the English Constitution 1300–1629 University of Minnesota Press(1948) pp216-230
  45. Pocock, J.G.A. The Ancient Constitution and the Feudal Law Cambridge University Press reisssue (1987) p154
  46. Wright, Herbert G. The Life and Works of Arthur Hall of Grantham, Member of Parliament, Courtier and First Translator of Homer Into English (1919) p72
  47. Turner, Ralph V. Magna Carta Longman (2003) 148
  48. Holt, J.C. Magna Carta Cambridge University Press 2nd edition (1992) p12
  49. Holt, J.C. Magna Carta Cambridge University Press 2nd edition (1992) pp20-21
  50. Turner, Ralph V. Magna Carta Longman (2003) 157
  51. Pocock, J.G.A. The Ancient Constitution and the Feudal Law Cambridge University Press (1987)
  52. Turner, Ralph V. Magna Carta Pearson (2003) p156
  53. Greenberg, Janelle The Radical Face of the Ancient Constitution: St Edward's 'Laws' in Early Modern Political Thought Cambridge University Press (2001) p148
  54. Russell, Conrad Unrevolutionary England, 1603–1642 Hambledon Press (1990) p41
  55. http://www.dca.gov.uk/judicial/speeches/lcj150605.htm Magna Carta: a Precedent For Recent Constitutional Change
  56. Woolrych, Austyn in David L. Smith (Editor) Cromwell and the Interregnum: The Essential Readings Wiley-Blackwell (2003) p66
  57. Pocock, J.G.A. The Ancient Constitution and the Feudal Law Cambridge University Press (1987) p127
  58. Kewes, Paulina The uses of history in early modern England University of California Press (2006) 226
  59. Danziger & Gillingham (2004) pp.281–282
  60. Pocock, J.G.A. The Ancient Constitution and the Feudal Law Cambridge University Press (1987) "The Brady Controversy" chapter pp182-228
  61. Turner, Ralph V. Magna Carta Pearson (2003) p165
  62. Pocock, J.G.A. The Ancient Constitution and the Feudal Law Cambridge University Press (1987) p228
  63. Turner, Ralph V. Magna Carta Pearson (2003) p170
  64. Linebaugh, Peter The Magna Carta Manifesto: Liberties and Commons for All University of California Press (2008) p113-114 and p96
  65. Hazeltine, H.D. The influence of Magna Carta on American Constitutional Development in Malden, Henry Elliot (editor) Magna Carta commemoration essays (1917) p 194
  66. Hazeltine, H.D. The influence of Magna Carta on American Constitutional Development in Malden, Henry Elliot (editor) Magna Carta commemoration essays (1917) p 195
  67. Turner, Ralph V. Magna Carta Pearson (2003) p210
  68. Turner, Ralph V. Magna Carta Pearson (2003) p 211
  69. Hazeltine, H.D. The influence of Magna Carta on American Constitutional Development in Malden, Henry Elliot (editor) Magna Carta commemoration essays (1917) pp 183–184
  70. Frederic Jesup Stimson, The Law of the Federal and State Constitutions of the United States; Book One, Origin and Growth of the American Constitutions, 2004, Introductory, Lawbook Exchange Ltd, ISBN 1-58477-369-3
  71. Charles Lund Black, A New Birth of Freedom, 1999, p. 10, Yale University Press, ISBN 0-300-07734-3
  72. Turner, Ralph V. Magna Carta Pearson (2003) pp1990-200
  73. Volume 6 1862 pV
  74. Clare A. Simmons, "Absent Presence: The Romantic-Era Magna Charta and the English Constitution," in Medievalism in the Modern World. Essays in Honour of Leslie J. Workman, ed. Richard Utz and Tom Shippey (Turnhout: Brepols, 1998), pp. 69–83.
  75. Galef, David Second thoughts: a focus on rereading Wayne State University Press (1998) p78-79
  76. Pollard, Albert F. The History of England; a study in political evolution (1912)pp31-32
  77. Clark, David The Icon of Liberty: The Status and Role of Magna Carta in Australian and New Zealand Law Melbourne University Law Review 34 (2000)
  78. Kennedy, William Paul Mcclure The Constitution of Canada; An Introduction to Its Development and Law (1922) p228
  79. Drew, Katherine Fischer Magna Carta Greenwood (2004) pxvi & pxxiii
  80. Davis, G.R.C., Magna Carta, published by the British Library Board, 1977, p.36
  81. http://www.globalsecurity.org/military/facility/fort-knox-depository.htm Fort Knox Bullion Depository
  82. Magna Carta on Display Beginning 4 July . http://web.archive.org/web/20070927032707/http://www.constitutioncenter.org/PressRoom/PressReleases/2007_05_30_17687.shtml. 27 September 2007. National Constitution Center. 30 May 2007. 2 September 2007.
  83. http://www.nytimes.com/2009/09/14/nyregion/14magna.html Copy of Magna Carta Travels to New York in Style
  84. http://www.frauncestavernmuseum.org/magna-carta.html Magna Carta and the Foundations of Freedom
  85. http://news.bbc.co.uk/1/hi/england/wiltshire/8182987.stm Award for cathedral Magna Carta
  86. Harry Evans, Bad King John and the Australian Constitution
  87. http://www.americanheritage.com/articles/magazine/ah/2008/4/2008_4_34.shtml A.E. Dick Howard
  88. Dictionary of Modern Legal Usage, Bryan A. Garner
  89. Merriam-Webster's Dictionary of English Usage
  90. Sarasin, Ronald A., Remarks on the Magna Carta, United States Capitol Historical Society, 12 September 2003.