User:Neiljamesking/Magna Carta

This is what I have written to be the Magna Carta article, please feel free edit it as you see fit. Please add any comments about whether any passage is irrelevant or should perhaps be in another article.

This article is about the English charters of 1215 onwards. For other uses, see Magna Carta (disambiguation).

This article follows the usual academic style and refers to the document as "Magna Carta" rather than "the Magna Carta".

Magna Carta (Latin for "Great Charter", literally "Great Paper"), also known as Magna Carta Libertatum.

Events Leading up to Magna Carta

France

on june 15 1215 One hundred of the major causes of discontent in the realm was John’s action in France. At the time of John’s accession to the throne there was no set rules to define the heredity of the crown and therefore John as Richard’s younger brother was crowned over Arthur, John’s elder, but dead, brother’s son. Arthur still had a claim, however, over the Anjou empire and because of this John had to get the approval of the French King, Philip Augustus; to do this he gave him vast tracts of the French territories of the Anjou empire. Later, when John married Isabella d’Angoulême, her previous fiancé, one of John’s vassal’s appealed to Philip, who then forfeited all of John’s French land. He declared Arthur as the true ruler of the Anjou throne and invaded in mid 1202 with the idea of achieving this end; this meant John had to act simply to save face; however his eventual actions did anything but this; as he ended up killing Arthur in a drunken rage, losing the little Baronial support he had in France. This enabled Philip to take all of John’s remaining French territories, including the twelfth century jewel in the crown; Normandy at the Battle of Bouvines . However short-sighted John may have been, he could not have failed to see that not only would this reveal him as a weak military leader, but it lost him a major source of income, which meant that he would have to further tax the already unhappy Barons who were starting to see him as weak.

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. However in the early Thirteenth century, the bishops began to want a say. Not wanting to give the Bishop’s a chance to do this, the monks elected one of their number to the role and 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 who, in all fairness, was probably the best choice; Stephen Langton. John refused to accept this choice however, and exiled the Canterbury monks from the realm. Infuriated by this Innocent ordered an interdict (prevention of public worship in England) in 1208 and excommunicated John in 1209, further from this he backed Philip to invade England in 1212. Due to all this John finally backed down and agreed to endorse Langton and to 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 1000 marks per annum. This further enraged then Barons as this meant they had even less autonomy in their own land.

Taxes

However despite all this England was in a position where it did not need a strong king, Henry II as a very powerful King, had established a strong and efficient civil service, who could adequately run the country without the overseeing of a king; and in fact had done very much so throughout the reign of Richard I. However, what it did need was money, this period of prosperity now meant that mercenary soldiers cost nearly double what they had, but it was near impossible to raise the taxes of the kingdom accordingly due to pre-eminence of tradition in the medieval mind which demanded taxes remain at the level which they had always been at. Also the loss of the French territories, especially Normandy, meant there had been a great depreciation in the income of the realm, and a huge tax would have to raised in order to attempt to reclaim these territories. Novel forms of income included Forest law (a set of regulations pertaining to the king’s forest which were easily broken and severely punished) John also increased the pre-existing scutage (rent paid to feudal overlord) 11 times in his 17 years as king as opposed to 11 times in twice that period before him, covering three monarchs. The last two of these increases were double the increase of their predecessors He also imposed the first income tax, which raised, what was at the time, the extortionate sum of £60,000.

Rebellion

The scene was therefore set for the rebellion. They were being ruled by a king who had shown himself to be a weak leader and a weak general. Not only this but he had added insult to injury by asking the Barons to pay for his failure. The first outright rebellion was in 1213 when the Barons refused to join John in his attack against France in order to regain the lands previously lost, due to this the attack, in 1214, was a spectacular failure and the Barons refused to pay for any further attack. The barones entered London, from this point on all was essential lost for John and although he offered arbitration, it was refused. On the 15th June 1215 at Runnymede he was forced to grant the great seal to Magna Carta. The Pope was enraged by this and ordered the excommunication of the rebels, it was however unfortunate that the man who would be responsible for this, the Archbishop of Canterbury, was the leader of the rebellion. This did not prevent the pope from doing so however, and he ordered Langton from office and condemned The Charter with a papal bull. However it was all very academic, as John died the following year on 18th October leaving his infant son as heir. The Barons could do as they wished and made sure the young Henry III would honour The Charter.

Magna Carta

Is the chief defense against arbitrary and unjust rule in England. It is a document which the King of England, King John, was forced to sign.

Content of Magna Carta

Current Rights Still in Force Today

The first clause of Magna Carta (the original 1215 edition) guarantees the freedom of the English Church, although this originally meant from the King, as can be seen below, later in history was used for different purposes. Clause 13 guarantees the “ancient liberties” of the city of London, Clause 39 gives a right to due process. Article 61 allows for a Baronial council to ensure that the King (or monarch) keeps the law; it allows for them to renounce their oath of allegiance to the king if needs be and allows others to pledge allegiance to the council and not to the king in certain instances.

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. Clauses 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 1225 Charter

These provisions would have no bearing in the world today, as they are feudal rights, and were not even included in the 1925 charter. Clauses 9 to 12, 14 to 16, and 25 to 26 deal with debt and taxes and Clause 27 gave the rules or intestacy. The other clauses states no one may seize land in debt except as a last resort and states that underage heirs and widows should not pay interest on inherited loans. Also that county rents will stay at their ancient amounts and that the crown may only seize the value owed in payment of a debt. It also states that aid (taxes for warfare) must be reasonable and that scutage (feudal rent) may only be sought with the consent of the kingdom. These clauses were not present in the 1225 document, but despite this, it 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, which shall be discussed below. butty hole smelllz illl !!!!

Judicial Rights (also in 1225 Charter)

These rights where 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. It also provided that fines should be proportionate to the offence (and should not be influenced by ecclesiastical property in clergy trials) and that that people are to be tried by their peers. Many think this to give 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 says there is to be no 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 states 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 states 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 Clause 41 and 42 guaranteed the safety and right of entry and exit of foreign merchants. Clause 45 provides that the king should only appoint royal officers where they are suitable for the post. Article 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 abolished 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 provides that no member of the D’Athèe family could be a royal officer and 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 state The Charter is to be binding on the Kings and his heirs forever, but this was soon deemed to be dependant on that specific King reaffirming The Charter under his own seal.

The Great Council

The first long term constitutional effect arose from Clauses 14 and 61. These clauses allowed for a council comprised of the most powerful men in the country, and allowed them to exist for the benefit of the state rather than simply in allegiance to the monarch. The common council, later known as the Great Council, was an early parliament; they had responsibility for taxation and although it was not representative the members were bound by any decisions made in their absence. The Great Council was Englands proto-parliament.

The Great Council was only there to give the opinion of the kingdom as a whole, and only had power in relation to scutage until 1258. In this year Henry III got into debt fighting in Sicily for the pope, and the Barons only agreed to tax in return for reform; this led to the Provisions of Oxford. However, Henry got a papal bull allowing him to set aside the provisions and in 1262 he told the 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; the King surrendered but after Louis IX found for Henry in arbitration the king was able to crush the rebellion but ceded somewhat and passed the statute of Marlborough in 1267, which allowed for writs for breaches of Magna Carta to be free of charge, enabling any to have standing to apply The Charter. This secured the position of the council for good but its powers were still very limited.

However, it certainly seems this council was an early form of parliament, although they originally only met three times a year, when the king wore his crown, so were certainly subservient to the king’s council or Curiae Regis, who followed the king wherever he went unlike the Curiae Regis. However, they had the power to meet other than under the authority of the king, and were not appointed by the King. whilst modern Government has its origins in the Curiae Regis, parliament descends from the Great Council; which was later known as the parliamentum.

The Great Council was, however, very different from modern parliament. Originally there were no knights; let alone commons, and it was just the most powerful men, there were no elections. 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 in 1253 (Simon de Montfort’s Parliament), and the council became far more representative under the model parliament of Edward I where two knights from each county, two burgesses from each borough and two citizens from each city were sent. The rest of Parliament’s development into a more modern parliament will not be discussed here, as Magna Carta had no influence. As a brief history, the commons separated from the Lords in 1341 and the right of commons to exclusively sanction taxes (based on a withdrawn provision of Magna Carta) was re-asserted in 1407 although never was not in force 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 about for the century before the Tudors.

The Tudors

Despite it being the first entry on the statute books there is no reference made to Magna Carta after 1472 for nearly one hundred years and there was a great deal of ignorance about the document even by those who wrote about the period and the few who did know about the document spoke of a good king being forced by a 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 a ancient document with shadowy origins which had no real bearing on the Tudor world; indeed in ]]Shakespeare]]’s King John; there is absolutely no mention of The Charter at all, and it focuses on the murder of Arthur, The Charter in the statute books was thought to arise from the reign of Henry III rather than this being a re-affirmation of the original charter.

The First Uses of the Charter as a Bill of Rights

However 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 as any other. However 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 whatsoever; Francis Bacon was the first person to attempt to use Clause 39 to attempt 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 most certainly was not seen, as it was later, as an entrenched set of liberties guaranteed for the people against The Crown and Government in general, but as a normal statute which although gave a certain level of liberties, most certainly 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 and although the origins of Parliament lay in The Charter itself, by this stage the powers of the institution had gone far beyond those humble beginnings under its own volition and The Charter was not seen as important enough to have any real effect until the Elizabethan age.

Reintepretation of the Charter

In the Elizabethan age Britain was beginning to become the most powerful force in Europe and therefore pride was become a primary force in all areas of academia and the search began to attempt prove that Parliament had origins Roman origin; a futile search but one which was undertaken with great earnest. With the re-discovery of the events at Runnymede in 1215 there came a real possibility of showing the antiquity of Parliament and Magna Carta became synonymous with the idea of an ancient house with its origins in roman government. The Charter was, rightfully, interpreted as an attempt to return to a, perhaps fictional, pre-Norman state of things and therefore was seen by the Tudors as proof that the state of governance at the time had existed since time immemorial and the Normans had been little more than a brief break from this time of liberty and democracy; this is almost certainly not true but explains how Magna Carta came to be regarded as such an important document. With Magna Carta again occupying the forefront of the legal mind it again became possible for it to shape the way that government was run; and in fact it did not take long before The Charter was seen as an immutable entity and in the trial of Arthur Hall for questioning the antiquity of the house; one of his supposed crimes was an attack on Magna Carta.

Edward Coke’s Opinions

One of the first respected jurists to write seriously about the great charter was Edward Coke; who had an awful lot to say and the subject and was hugely influential on 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 their 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 wrongly as proof of Parliament being pre-Norman. 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.

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 it “had an obscure birth of usurpation…and shewed to the world in rebellion” which not only was a quote from Raleigh’s The Prerogative of Parliament but was 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 defence. 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 got 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.

The Stuart Period

By the Stuart age Magna Carta had taken on a mythical aura and represented in the hearts of the common man a ‘golden age’ of English liberties which existed before the Norman invasion and had been attempted to return to by Magna Carta; it is true that the document did attempt to at least partially return to this ‘golden age’ although whether or not this ‘golden age’ ever truly existed is far to open to lengthy debate to be discussed here. 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.

Magna Carta’s Role in the Lead up to the Civil War

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 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, 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 got so powerful that The Charter was at that time being used for two purposes with Parliament as a new organ of the Crown 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 a body as 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 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 for 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 need to show they could overrule Magna Carta. However Parliament was not ready to repeal The Charter yet, 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.

Stuart Theories on Magna Carta

In the Stuart age 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 were a very early form of what would now be known as a communist movement. They believed that all should be equal and free without 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 The Charter so highly that they believed all such as Laud who “trod Magna Carta…under their feet” deserved to be attacked at all levels, and that anyone of any status attempting to do the same should be treated in the same way. The original idea was to achieve this through Parliament but there was little support, because at the time the Parliament was seeking to impose themselves as above The Charter. The Levellers claimed, however, The Charter 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 form the extremes of the King and that this was adequately protected by Magna Carta and therefore Parliament should be subservient to The Charter. After the Civil War Cromwell refused to support the Levellers he was also 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 the purpose of The Charter to lay people and to expose the misspeaking against The Charter in the popular press of the time, he was quoted himself 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 decreased their advocacy of The Charter. Welwyn, another leader of the movement advocated natural law and other doctrines ads the primary principles of the movement, this was mainly because of the obvious intention of The Charter was to grant rights only to the Barons and the episcopacy, and not the general and equalitarian rights the Levellers were claiming. Also influential, however was Spelman’s rediscovery of the existence of the feudal system at the time of The Charter, The Charter seemed to have less and less effect on the world of the time, the only right which the Levellers could trace back to The Charter, but possibly, prized over all other, 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 The Charter was an attempt to return to the mythical pre-Norman ‘golden age’. However, not all such groups advocated The Charter, the Diggers were another 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 The Charter as a show of the hypocrisy of the post-Norman law, as Parliament and the courts advocated The Charter and yet did not even follow it themselves, they 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.

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 The Charter and many thought he should be crowned just so The Charter would apply; this plan failed and for the brief period of the Commonwealth (although it would not have seemed brief to those who lived through it) England for the first time was ruled by a single man above all other forms of authority; an irony when one considers that is exactly what his supporters had fought to prevent.

The Seventeenth Century

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 to but not yet 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 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 favour 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 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 Lord to indict Thomas Lord Danby on a charge of fraternising 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 once more to force an indictment in the Lords, this time of Edward Fitzharris who was accused of writing libellously 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. However this time the Commons replied with a retort 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. Both houses were claiming their supremacy was supported by The Charter under Clause 39, but the power of the King was still too much for either house to come out fully as the most powerful.

The squabble continued outside of the Palace of Westminster also, in 1667 the Lord Chief Justice and important member of the House of Lords of the time, 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, when they objected on the grounds of Magna Carta, he scoffed and exclaimed “Magna Farta, what ado with this have we?”. The Commons where 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, but Keating apologised anyway. In 1681 the next Lord Chief Justice, Lord Scroggs was condemned by the Commons firstly for being overly severe in the so-called ‘papist plot trials’ and secondly 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.

This was not the end of the struggle however, and in 1679 the Commons passed the Habeas Corpus Act, 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 importance of The Charter had been so magnified 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 signification 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 Common’s 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 realised 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’ 4-year-old son died in 1677 and it seemed his protestant daughter Mary would take his throne. However when James gave birth to a male heir in 1688 Parliament could not take the risk that this would be another Catholic monarch would assume the throne and take away their power, which they had managed to attain, and 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 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; the Bill of Rights. The Bill of Rights went far beyond Magna Carta had ever intended to. 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 they diminished somewhat.

The Eighteenth Century

The myth of Magna Carta was still continuing 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 then 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 we understand Parliamentary sovereignty 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 even the proponents 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..

In 1722 the Bishop of Rochester (Francis Atterbury), 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, bought 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 their 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; Jonathon 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 “Saxon liberties and immemorial Parliaments”. 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 recognise as sovereignty today. The Whigs on the other hand claimed, rightfully, that “The Charter only benefited the Nobility and the Church” and was “slavery compared with the liberty we now enjoy”. 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

By 1765 the taxes pad by the American colonists no longer covered the expenses of the garrisons protecting them and therefore the government of the time extended the stamp duty which had been in force on home territory since 1694 to cover the American colonies as well in the Stamp Act 1765. However the colonists despised this as they were not represented in Parliament and refused to see how a body, which did not represent them, could tax them the cry ‘no taxation without representation’ rang throughout the colonies. The fact that this cry could have equally been applied in the United Kingdom seemed to be lost on them, as at the time, Manchester and Birmingham had no MP. It did not seem an option to give representation to both America and Manchester. The debate was certainly a complicated one with the ‘representationalists’ quoting Magna Carta as precedent although there is absolutely nothing in that document which provides for a representative Parliament at all, so when the Great Council was approving taxation in the fourteenth century, it was certainly not representative of all those who were paying that tax. This is a further example of how the idea of the liberties of Magna Carta went far beyond its content. Whether it was legal or not to raise tax from those who were not represented, Magna Carta certainly did not prohibit it, albeit that logical argument can flow from it, there is no law, at least in The Charter itself, which prohibits it.

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 of 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.

In 1763 an MP, John Wilkes was arrested for writing an inflammatory pamphlet; No. 45, 23rd of April 1763, however he cited Magna Carta incessantly, and the weight that Magna Carta held at the time meant Parliament was anxious of continuing the charge and he was released and awarded damages for the wrongful seizing of his papers as the general warrant under which he was arrested was deemed illegal, however he was still expelled from Parliament after spending a week in the Tower of London. He was abroad for a number of years until 1768 when he returned and failed to be elected as the MP for London, unperturbed however he stood again for Middlesex but he was expelled again on the basis of the earlier offence the next year. He stood again however and was elected yet again but the Commons ruled that he was ineligible to sit. At the next three re-elections Wilkes again was the champion, but the house did not relent and his opponent, Lutteral was announced the winner. The treatment of Wilkes caused a furore in Parliament, with Lord Camden denouncing the action as a contravention of Magna Carta. Wilkes made the issue a national one and the issue was taken up by the populous, and there were very popular prints of him being arrested whilst teaching his son about Magna Carta all over the country and he had support of the Corporation of London, long seeking to establish their supremacy over Parliament based on The Charter itself. The fight for the charter was misplaced and it was merely the idea of the liberties which were supposedly enshrined in The Charter that people were fighting for, it is no coincidence that those who supported Wilkes would have little or no knowledge of the actual content of The Charter, or if they did were looking to protect their own position based on The Charter. Wilkes re-entered the house in 1774 but he had talked of Magna Carta as he knew it would capture public support to achieve his aims, however he had started the ball rolling for a reform movement to ‘restore the constitution’ through a more representative, less powerful, and shorter termed Parliament.

One of the principle reformists was a man called Granville Sharp who was a philanthropist who had on his list of causes the Society for the Abolition of Slavery and The Society for the Conversion of the Jews. Sharp called for the reformation of Parliament based on Magna Carta, and devised a doctrine to back this up, the doctrine of accumulative authority. This theory stated that almost innumerable parliaments had approved of Magna Carta, and therefore it would take the same amount of Parliaments to repeal The Charter, as with many, he accepted the supremacy of Parliament as an institution, but he did not believe that this power was without restraint, namely that they 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.

Although there was a popular movement to resist the sovereignty of Parliament based on The Charter, there were still a great number of people who 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 before hand to facilitate it 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.

The work of people like Cartwright was fast showing that the rights granted by The Charter were out of pace with the developments which followed in the next six centuries, however there were 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, Magna Carta was diminishing and the arguments for having a fully sovereign Parliament were become more and more accepted. Many in the house still supported The Charter, however such as Sir Francis Burdett who called for a return to the constitution of Magna Carta in 1809 and denounced the house for taking proceedings against the radical John Gale Jones, for denouncing the house as 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 had usurped all the power then enjoyed by the Parliament of the time, he stated that Parliament were constantly acting out against Magna Carta (although he was referring to their judicial not legislative practice) which they did not have the right to do; he achieved popular support and their were riots across London when he was arrested for these claims and again a popular print circulated of him being arrested whilst teaching his about Magna Carta

With the popular movements being in favour 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 favour 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 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 Peoples 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 to all. 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 as those such a 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.

The Modern World

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 public attention for repealing The Charter).

Magna Carta and America

Many later attempts to draft constitutional forms of government, including the United States Constitution, trace their lineage back to this source document. The influence of Magna Carta can be clearly seen in the U.S. 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.

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, although Jews, as non-Christians, could not be excommunicated and were thus in a legal grey 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. Several of those still exist and some are on permanent display. The original version of Magna Carta sealed by King John in 1215 has not survived. Four contemporaneous copies (known as "exemplifications") remain, all of which are located in the UK: two held by the British Library, one at Lincoln Castle, and one at Salisbury Cathedral. Thirteen other versions of Magna Carta dating to 1297 or earlier survive, including four from 1297.

Wikisource has the English translation.

In 1952 the Australian Government purchased a 1297 copy of Magna Carta for £12,500. 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.

In September 1984, The Perot Foundation purchased another copy of the 1297 issue of Magna Carta. This copy is on indefinite loan to the National Archives and Records Administration in Washington, D.C.

Usage and spelling

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 OED, the first written appearance of the term was in 1218: "Concesserimus libertates quasdam scriptas in Magna Carta nostra de libertatibus." (Latin: "We concede the certain liberties here written in our great charter of liberties.") However, "the Magna Carta" is also frequently used. In the past, the document has also been referred to as "Magna Charta".

Monuments to Magna Carta

Monuments have been erected to Magna Carta:

at Runnymede in 1957 by the American Bar Association acknowledging the debt American law and constitutionalism had to Magna Carta;
in the Australian capital, Canberra, within the Parliamentary Triangle opened on 24 May 2003.

American Bar Association monument at Runnymede.
Magna Carta Place, Canberra, Australia
Panel detail, Magna Carta Place, Canberra, Australia

References

Article from Australia's Parliament House about the relevance of Magna Carta
Holt, J.C. (1992). Magna Carta. Cambridge: Cambridge University Press. ISBN 0-521-27778-7.
Jennings: Magna Carta and its influence in the world today
H. Butterfield; Magna Carta in the Historiography of the 16th and 17th Centuries
G.R.C. Davis; Magna Carta
J.C. Dickinson; The reat Charter
G.B. Adams; Constitutional History of England
A. Pallister; Magna Carta the Legacy of Liberty
A. Lyon; Constitutional History of the United Kingdom
G. Williams and J. Ramsden; Ruling Britannia, A Political History of Britain 1688-1988

External links

The British Library
magnacharta.com
The influence of Magna Carta on the United States Constitution and Bill of Rights
historicaldocuments.com
Parliament House, Canberra, Australia
Text of Magna Carta with introductory historical note. From the Internet Medieval Sourcebook.
Notes prepared by Nancy Troutman