War and poverty save Magna Carta from history’s dustbin
The first Magna Carta was a dead letter within only 12 weeks of its creation in June 1215. As a treaty intended to establish peace between king and barons it failed entirely.
It owed its survival to the desperate circumstances of 1216: the death of King John and the accession of his nine-year-old son, Henry III. Henry’s counsellors, keen to advertise their willingness to break with past misdeeds, reissued Magna Carta in a revised form in November 1216. As a manifesto of future good government, it was reissued with further revisions in 1217, at the end of the civil war between the barons and the king.
Eight years later, following the loss of La Rochelle and further ancestral territory in France, Henry III desperately needed taxation to pay for the defence of what remained of his family lands in Gascony and Poitou. It was against this backdrop that Magna Carta was issued again in February 1225 – this particular version condensing the more than 60 clauses of 1215 into a mere 37.
Stephen Langton, archbishop of Canterbury and a leading figure in the original negotiations of 1215, remained a powerful influence behind this reissue.
The 1225 Magna Carta was to become the definitive text, eclipsing the charter issued at Runnymede. This was to cause confusion, since lawyers, through to the 18th century, tended to cite the 1225 charter as if it were the Magna Carta issued by King John.
It was not until the work of the jurist William Blackstone that a proper distinction was drawn between the texts of 1215 and 1225.
1265: The ‘commons’ have their say
Simon de Montfort holds England’s first model parliament
Ever since it was first issued in 1215, Magna Carta had been linked to the principle that taxation could only be granted with baronial consent. By the 1230s, councils (known as parliaments – ‘speaking togethers’) were meeting to obtain such consent; by the 1250s, they were judged capable of convening in the king’s absence.
As proof of good intentions towards their subjects, kings were regularly obliged to reissue Magna Carta. This is what happened to Henry III in 1234, 1237, and again in the early 1250s, when oaths were publicly proclaimed that the king would uphold the charter as the symbol of justice and right.
Even so, Henry’s financial mismanagement, and the pressure of his ambitions in foreign affairs, caused a crisis in 1258, and again in 1264, and resulted in a group of barons, led by Simon de Montfort, seizing power.
Desperate to widen the basis of his support, Montfort summoned a parliament, calling not only barons (or ‘lords’) but ‘the commons’, via representatives sent from each of the English shires and from each of the greater boroughs. This parliament of 1265 was crucial in the emergence of the future ‘county and borough’ franchise for the House of Commons, still going strong, albeit in modified form, 750 years later. As part of his propaganda campaign, Montfort’s parliament reissued Magna Carta.
The events of 1265 further established parliament as the chief instrument for the counselling, and if necessary, the compulsion of kings.
1297: Magna Carta makes it onto the statute books
Edward I gives the charter his seal of approval
The regularity with which Magna Carta was reissued during the 13th century ensured that, by the reign of King John’s grandson Edward I, it enjoyed totemic status as a symbol of good government. Edward’s conquests in Wales, Scotland and France were financed by parliament, in return for the king promising not to abuse his power.
In the late 1290s, this virtuous circle imploded. The pressures of war in Gascony and Flanders placed impossible burdens upon public finance. In Scotland, the revolt of William Wallace led to a crushing defeat for the English at the battle of Stirling Bridge.
With the king absent on campaign in Flanders, and with popular protest mounting against the emergency taxes imposed to deal with the crisis, on 12 October 1297 the king’s son, (the future Edward II), reissued Magna Carta in a bid to recover support. This reissue was the first to be copied onto the royal roll of statutes. As a result, this issue today enjoys currency under English law.
In theory, the 1297 charter merely rehearsed the terms of the charter as granted in 1225. In practice, because it was taken from an unofficial or inferior copy of 1225, it introduced a number of minor variants, the most important being that earls should pay the king £100 to inherit their lands whereas barons would pay £66.
Because it was not issued by the king in person, the 1297 charter was reissued three years later under the great seal of Edward I. This was the last occasion on which Magna Carta was officially sealed by a king and distributed to each of the 30 or so shires of England.
1370s: Wycliffe takes a swipe at the pope
The religious dissident uses the charter to question Rome’s power
Throughout the later Middle Ages, English kings and parliaments paid lip service to Magna Carta, undertaking to observe its terms. Yet even as early as 1300, much of the charter had been rendered archaic by the onward march of events and by changes in the application of feudal law.
Lawyers continued to debate the meaning of individual clauses. The charter itself, often in the version promulgated in 1297, continued to appear at the head of the hundreds of books of statutes sold as a standard part of the educational system of the Inns of Court school of law (England’s ‘third university’).
Most discussions of the charter nonetheless pursued only arcane points, skirting the greater principles of due process and the rule of law set out in clause 29 of the 1225 and 1297 reissues: “No free man is to be taken or imprisoned or deprived of his free tenement or of his liberties or free customs… save by lawful judgment of his peers or by the law of the land.”
There are exceptions, however, such as the works of the 14th-century theologian, philosopher and controversialist John Wycliffe (pictured below). Wycliffe – who is widely regarded as the founder of the sect of religious dissidents known as ‘Lollards’ – used the charter to argue for the feudal dependence of the clergy upon king and realm. This formed part of his wider attempt to detach the English church from its theoretical obedience to the popes in Rome or Avignon.
To this Wycliffe added a further dimension, arguing that Magna Carta, rather than the laws of the Roman empire or church, should be taught to lawyers. Under Roman law it was accepted that ‘what pleases the prince has the force of law’. By championing the ‘great charter’ as an alternative, Wycliffe anticipated its future use as a brake upon the brute exercise of royal sovereignty.
1400s: The church bares its teeth
Magna Carta fails to prevent the torture of heretics
English law in the 15th and 16th centuries, despite being manipulated in favour of the king, did to some extent offer protection against arbitrary arrest and imprisonment. Death sentences could in theory only be imposed after lawful judgment. Slavery had no recognition in English law. Torture remained an extra-legal resort, at odds with legal principle.
By contrast to all this, clause 1 of Magna Carta, guaranteeing the liberties of the English church, not only assumed a degree of compulsion in adherence to Christianity and the Catholic faith but, in effect, placed the church courts in a privileged position outside the mainstream of English law. Especially in cases of heresy, church courts could receive evidence extorted under torture, not least in the inquisitorial procedures used against the Lollards.
Even that great defender of the liberties of the church, St Thomas More was prepared to accept all manner of injustices in the prosecution of heretics by perjured witnesses, hearsay and the use of torture. Only from the 1580s onwards did lawyers, most notably Robert Beale, clerk of the Elizabethan Privy Council, begin to challenge the prosecution of heresy as a crime. In doing so, they cited the 1225 Magna Carta, clause 29, arguing that Magna Carta recognised ‘rights’ as freeholds of which individuals could not lawfully be deprived. To this extent, in the fight for religious toleration, Magna Carta served as a witness both for the prosecution and the defence.
1628: King Arthur appears on the road to civil war
Parliamentarians cite Magna Carta in their showdown with Charles I
Despite its role in religious affairs, Magna Carta played little part in political debate during the reigns of the Tudors. For its revival as a political manifesto we have to look to the 17th century and the writings of the Stuart chief justice Sir Edward Coke.
As early as 1608, Coke could be found arguing that no ecclesiastical court should examine a man on the secrets of his heart, “for thought is free”. Thereafter, in opposition to Stuart attempts to revive medieval feudal taxes and to exalt the king as ‘absolute’ sovereign, Coke championed Magna Carta as chief embodiment of what he presented as an ‘ancient’ English constitution. His thoughts here were set out at greatest length in his Institutes of the Lawes of England, published between 1628 and 1644.
Meanwhile, Coke’s championing of Magna Carta brought the Great Charter to centre stage in the political debates that preceded the Civil War. Magna Carta was widely cited in the controversies over the Petition of Right (1628), passed by parliament in open defiance of King Charles I and intended to restrict the king’s powers to impose non-parliamentary taxes, to billet troops or to imprison his subjects without trial.
The irony here is that Coke and his contemporaries cited Magna Carta not as an innovation of the reign of King John but as the embodiment of an entirely mythical ancient constitution stretching back to the time of the equally mythical King Arthur.
It was thanks to the contemporary obsession with Magna Carta that the 17th-century politician and collector Sir Robert Cotton went to such lengths to acquire the charter as artefact. Thanks to his efforts, two of the four surviving originals of the 1215 Magna Carta are today among the Cotton collection of manuscripts in the British Library.
1770s: America demands its liberty
The charter becomes essential reading for colonial revolutionaries
Beginning with the royal charter confirming the colony of Virginia in 1606, it became established practice for the British colonies in North America to be offered the liberties and protections of the common law, as the Virginia charter phrases it, “as if they had been abiding and born within this our realm of England”. Similar clauses were inserted in the charters offered by Charles I to Massachusetts (1629), Maryland (1632), Maine (1639) and to other colonies thereafter.
As a consequence, when, in the 18th century, tensions began to emerge between the colonists and the British government over such matters as taxation, arbitrary arrest, the billeting of troops and the searching of private property, Magna Carta was widely cited in the colonists’ support.
In England, the Whig parliamentarian Edmund Burke demanded that America’s settlers should “sit down… to the feast of Magna Charta”.
The principle of ‘No taxation without representation’ – one of the key tenets of the American Revolution – could itself claim roots in Magna Carta 1215, with its demand for ‘common counsel’ before the granting of any tax.
During the American War of Independence, Magna Carta was regularly portrayed in political cartoons showing the colonists seated under the great tree of liberty from whose branches Magna Carta hung.
As a result, even today, Magna Carta commands a reverence in America that equals – indeed arguably outstrips – that which it enjoys in Britain. At precisely the same time that law reformers were repealing large parts of it as redundant feudal legislation in Great Britain, 17 of the states of America, beginning with South Carolina in 1836 and most recently with North Dakota in 1943, voted to embody Magna Carta fully within their statute books. As a result, far more of Magna Carta survives in American than in British law.
1789: The charter goes global
Liberty-lovers across Europe fall for Magna Carta’s charms
Although most often portrayed as a distinctively English or Anglo-Saxon statement of liberties, Magna Carta played a small but significant part in the French Revolution of 1789. Its principal message, that kings must rule under law, and that the law itself must be applied with ‘due process’, was echoed in the French revolutionary Declaration of the Rights of Man.
Once the turmoil of the revolution and the Napoleonic Wars had subsided, the restoration of the Bourbon kings of France was made conditional upon their acceptance of a Charte Constitutionelle (1814). This was a document drafted against the backdrop of British military success with Magna Carta as its archetype. In the aftermath of the battle of Waterloo (1815), the Charte was accepted as the principal guarantee of the liberties of the French people.
A similar constitutional charter was drafted to establish Belgium as an independent kingdom following the nation’s revolution of 1830. Thereafter, the French charter informed the revolutionaries of 1848 as they attempted to impose constitutional law across Europe.
Meanwhile, in America, a ‘due process’ clause directly derived from Magna Carta was incorporated into constitutional law, promising that “no person shall be… deprived of life, liberty or property without due process of law”. Words to this effect appear in the 5th Amendment to the United States Constitution (1789, amended 1791), again in the 14th Amendment passed in 1868 after the American Civil War, and again in articles 9, 10 and 11 of the United Nations’ 1948 Universal Declaration of Human Rights.
1800s-1900s: Radicals mount an attack on ‘tyranny’
Magna Carta becomes a totem for those demanding a fairer world
To the statesmen of Europe or America, Magna Carta seemed to embody stability and an age-old respect for legal process. Not so to radicals who demanded the clearing away of the dead wood of the past. For those in England who wanted parliamentary reform and an extension of the right to vote, Magna Carta became a totem of popular sovereignty. In the debates over the Great Reform Act of 1832, the historian Thomas Macaulay described the Reform Act, “this Greater Charter of the Liberties of England”, as a fit successor to the baronial charter of 1215.
Thereafter, Magna Carta served as a model for the People’s Charter proposed by Chartists calling for the extension of the parliamentary franchise. In the same spirit, from the 1860s onwards, suffragettes calling for votes for women used the imagery of Magna Carta to appeal against what they regarded as the male ‘tyranny’ of the Westminster parliament.
With the spread of empire, Magna Carta and the English system of law were exported across the globe. The Privy Council in London now acted as court of last resort for many millions of imperial subjects.
Even so, there was no clear agreement as to whether Magna Carta should serve as a universal or as a specifically ‘Anglo-Saxon’ guarantee of liberties. In 1914, for example, a group of Punjabi Sikhs seeking entry to Canada from the steamship Komagata Maru were denied entry and imprisoned. They used Magna Carta to appeal against what they considered illegal detention. Both the Canadian courts and the Court of Appeal in London denied their claims, confirming in the eyes of many that not all citizens of empire were considered equal or entitled to the same civil liberties.
1941: Magna Carta takes the fight to the Nazis
Allies at war are united by the ideals of liberty and democracy
Even today, Magna Carta remains a potent symbol not just of Englishness but of the wider Anglophone attachment to democratic process. In this respect, it had its finest hour in the Second World War. To those keen to forge an alliance between Britain and the United States, Magna Carta symbolised all that was most threatened by Nazism. So when Lincoln Cathedral’s original 1215 Magna Carta was stranded in America by the German U-boat campaign (following an appearance at the 1939 New York World’s Fair), Winston Churchill entertained the idea of gifting it to the American people. What better way to demonstrate the two nations’ solidarity?
The scheme collapsed. But in its place, the ‘Atlantic Charter’ agreed between Churchill and American president Franklin D Roosevelt in August 1941, served not only to define Anglo-American goals for the postwar world, but to maintain the idea of liberty as something that only a ‘charter’ could guarantee.
Ironically, at roughly the same time that Churchill and Roosevelt were meeting, supporters of British fascist Sir Oswald Mosley, interned since May 1940 as potential traitors, were using Magna Carta to argue their right to fair trial. Even in wartime, Magna Carta retained its power to serve all political causes, from the most radical to the ultra-conservative.
Nicholas Vincent is professor of medieval history at the University of East Anglia. Follow his week-by-week construction of the events that led to Magna Carta at magnacartaresearch.org