Magna Carta matters! And mattered then, not just now for its symbolic assertion of the collective rule of law over arbitrary diktat.

Summary – context: a milestone in a very long process

Britain’s constitutional development

The Magna Carta was an important early 13th C milestone within the long emergence and development of the revolutionary British liberal-democratic governing model, a process arguably going back to the practices of the Germanic Anglo-Saxon tribes or peoples which settled there in the wake of Rome’s retreat, but which did not meaningfully conclude till over 700 years later in the 20th C, eg 1918 when women finally got the vote there!

The Industrial Revolution

Moreover this revolutionary constitutional development arguably also impacted materially on Britain being where the Industrial Revolution finally kicked off in the mid 18thC, c1750, perhaps the single most profound shift in humankind’s collective global circumstances since its evolutionary separation from other primates millions of years ago, now utterly transformative for man’s material living conditions, and also his knowledge of his universal material world.

Summary – why it mattered / matters

  • The Magna Carta (Great Charter) matters today mainly for its powerful global symbolic assertion of the rule of reason-based collectively determined law over arbitrary rule by a monarch or clique in their name or the name of some invoked divine entity.
  • However MC, in its various versions, was also important in its time, and remains a major milestone in Britain’s historic liberal democratic constitutional development.
  • It followed (and drew on) the important 1100 Coronation Charter of Henry I and was a milestone document in the ongoing circumscribing of arbitrary English monarchical rule, and arguably the single most important such document.
  • Ironically King John’s immediate rejection of the Charter he sealed 15th June 1215 only reinforced its significance, because soon after it was reissued to help secure support for Henry III from equivocating English nobles, and to help extract taxes. To these ends it was reissued a number of times (1216, 1217, 1225, and 1297), and reconfirmed many times.
  • John’s resistance also raises one of the more interesting “counterfactuals” in English history: what if he had not died suddenly in October 1216, aged 50. The then French pretender Prince Louis (later King Louis VIII of France), supported by rebel “English” nobles, came close to prevailing.
  • The MC has since became famous especially because it was powerfully invoked by the English parliament in 17th C in its epically consequential struggle with an intransigent and refractory king Charles I, trying to turn back the clock and rule for himself and God, and then because the MC’s application in these circumstances was exported to and took root in the US, which, whatever its faults, has grown into by far the most powerful effective democracy in the world.
  • While little of MC’s specific content is retained “on the books”, much of this specific content still resonates loudly today.
  • Meanwhile… Does MC have any cousins somewhere in the rest of Europe?

 

King John is shown where to “sign” (ie seal)….

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Emergence of Parliament before MC

The idea of “politics”, of convened meetings between relevant parties in a political entity (some kind of community, a tribe or clan or city) goes far back, possibly to old Mesopotamia but certainly ay to ancient Athens, around 500BC, when an Assembly, or Ecclesia, met on the Pnyx, a hill in central Athens, 40 times a year and attended by male citizens over 18. Decisions were taken by a majority show of hands vote. The Roman Republic, founded around 509 BC, was ruled by two elected Consuls, who acted on the advice of a Senatus or council of elders, comprising 300 drawn from wealthy and noble families.

The British Parliament has its origins in two early Anglo-Saxon assemblies, the Witenagemot (Witan) and the moots. The Witan dated back to the 8th C and advised the King on royal grants of land, taxation, defence and foreign policy. It did not have a permanent membership, made up of advisors and nobles who met when called by the King. The Witan had no power to make laws, but the King was careful to consult because ultimately he relied on the nobles support to rule.

After the Norman Conquest William ruled with the help of a much smaller but permanent group of advisers known as the Curia Regis (the King’s Council), consisting of noblemen and church leaders appointed by the King. Like the Witan, the CR only offered advice. The King also sometimes consulted a larger group of nobles and churchmen known as the Great Council (magnum concilium). Over time, the Great Council evolved into the House of Lords.

The moots were local assemblies held in each county (or shire) to discuss local issues and hear legal cases. They were made up of local lords, bishops, the sheriff and four representatives from each village in the shire. The practice of local representatives making decisions for their community eventually led to the creation of the House of Commons.

The preceding historical context

The 1215 document was sealed on 15 June 1215 at Runnymede, south bank of the Thames about 6km from Windsor and now smack in the Heathrow flightpath. Stephen Langton, Archbishop of Canterbury, supervised talks between the rival sides, the irate barons and King John. The Angevin king John was the youngest son of the long reigning (45 years, 1154-89) Henry II who had ruled generally well following near two decades of the Anarchy (1135-54) caused by the competent Henry I (ruled 35 years) dying 1135 leaving no male heir, his son William having drowned 1120 when the White Ship sank. John’s father was Henry I’s grandson via daughter Matilda who had married Geoffrey of Anjou.

Henry II’s main and important achievement was strengthening law and order, and he also kept the lid on his large but unsteady Anglo-French Angevin Empire the king. His eldest surviving son Richard I (Lionheart) ruled only 10 years, not badly but wasted time and money crusading, and also left no heir. John, 10 years younger than his brother, quickly lost Normandy (1204) and spent the rest of his rule trying to reclaim it, finally losing the important Battle of Bouvines. John’s nickname “Lackland” played on his important foreign policy failure.

 

The initial 1215 document

The Bouvines defeat July 1214 triggered the historic confrontation between monarch and barons, who were angry over money extracted by John to pay for pointless wars in France, and also with his ill-tempered arbitrary attacks on barons, in the Angevin tradition of ira et malevolentia (“anger and ill-will”), building on the Norman concept of malevolentia (“ill-will”), deemed a royal right to punish fractious nobles or clergy, reflecting the royal prerogative of vis et voluntas (force and will). Henry II had got away with this because his reign was generally competent.

The barons were now in open rebellion in 1215, making an oath in January they would stand fast for the liberty of the church and the realm“, demanding first John would confirm the 1100 Charter of Liberties. Negotiations with John ensued, the barons entering London on 10th June, ie with London’s support. Finally John sealed the Charter of Runnymede, or the “Articles of the Barons on June 15th. Copies were quickly dispatched around the kingdom.

The new charter was not a novel idea but drew on a by then important tradition rejecting arbitrary royal rule in favour of a rule of law agreed among the main parties: monarch, barons and clergy, a tradition arguably rooted in customs of the Germanic Anglo-Saxon tribes which settled in England from 5th C. Thus it drew directly on the 1100 Charter of Liberties (Coronation Charter) agreed by Henry I on his accession (after older brother William II (Rufus) had died hunting) to placate, gain support of barons and church offended by abuses during William’s rule.

But the 1215 charter and its subsequent variations arguably comprise an important milestone in Britain’s constitutional history, and hence the world’s.

 

Succeeding history: strengthening of parliament and the rule of law

Tough fight to eject French pretender Louis reinforces the new charter

The new Charter was immediately revoked by John, and at his request smartly annulled by a Papal Bull (by Innocent III, who May 1213 settled a dispute with John) the same year, 24th August.

But ironically John’s resistance served to reinforce the importance of the new charter as the country now slipped into an important civil war since some barons had invited the heir to the French throne (son of Philip II Augustus who had defeated John at Bouvines), Prince Louis, to press a claim to the English throne.

This was not a straightforward affair. A successful soldier, eg winning against John in France, 29 year old Louis landed on the Isle of Thanet in eastern Kent on 21st May 1216, with forces and went up to London where he was “proclaimed king” on 2nd June at St Paul’s Cathedral, with pomp and in the presence of nobles and Scotland’s King Alexander II, but he was not crowned. “On 14th June he captured Winchester and now.. controlled over half the English kingdom..

Crucially John died October 2016 (of dysentery, age 50) and some “English” rebel nobles now abandoned Louis to join the cause of the elderly famous knight William Marshal (then 69!), who was appointed regent to enforce the accession of John’s young (9 years) son as Henry III, supported keenly by the papal legate Cardinal Guala Bicchieri, backed by Pope Honorius.

Henry was crowned at Gloucester 28th October 1216 but while much of England till leaned to Louis. To help persuade rebel nobles to switch Marshall and Cardinal Guala Bicchieri issued a revised 42 clause Charter of Liberties on 12th November 1216, omitting the controversial Clause 61, and others disliked by the Papacy.

Though this did not help much? And “opposition to Henry’s new government hardened”. February 1217 Louis returned to France for reinforcements and Cardinal Guala now declared Henry’s war against Louis “a religious crusade”, which did cost Louis support? Louis returned end April 1217, but now made a tactical military error, splitting his forces between Lincoln in the north and an attempt to capture Dover Castle in the south. So Marshal now focussed on attacking Louis at Lincoln, and on 20th May 1217 his side prevailed, “entering through a side gate, he took the city in a sequence of fierce street battles and sacked the buildings… historian David Carpenter considers the battle… “one of the most decisive in English history””. The tide turned. Louis began negotiations with Guala, which stumbled and fighting resumed. But a French fleet arriving with soldiers and supplies 24th August off the coast of Sandwich was defeated and finally forced Louis to submit at the Treaty of Lambeth (12-13th September) in return for a 10,000 mark payment, and and amnesty for the English rebels. Louis later ruled France 1223-26, persecuting Jews and joining the Albigensian Crusade south in Languedoc.

Henry’s accession meant Louis did not quite foreshadow the successful Glorious Revolution of 1688!

What if John had not died then? Because even then Louis, an experienced soldier, was not easily defeated. If having got the upper hand by late 1216 Louis had waited for reinforements from France then had met Henry’s forces under Marshall perhaps he would have prevailed, bearing in mind many of the English nobles were part French, and holding lands in France.

 

Henry struggles to restore order

In the wake of the unrest restoring royal authority under Henry now was not easy,not helped when Marshal died May 1219. The country’s law and order system was now frayed. To help Henry’s cause the Charter was reissued in 1217, now expanded to 47 clauses, and now together with a Charter of the Forest which contained rights for commoners to access public land.

In 1225, yet again compelled by the need to raise money, and yet again to fight across the Channel trying to keep / restore lands there, the new king gained tax sum of Stg40k by agreeing to reissue and confirm the two Charters, the Great Charter (now trimmed to 37 clauses and the first charter to enter English law?) and the Charter of the Forest. And importantly he declared them reissued of his own “spontaneous and free will”.

In 1237 “Little Charter” (Carta Parva) was issued and both the 1225 Charters were confirmed and granted in perpetuity.

A later 1297 version (Confirmation of Charters) was issued by Edward I in return for a new tax. It was written in Latin, about 3550 words, but quickly translated to French, but not English until 1534. Between the 13h and 15th centuries the Charters would be reconfirmed many times..

But his reign is not well regarded?

Henry III ruled a long 56 years, till 1272, and badly, it is generally agreed, for the usual reasons of wasting a lot of money on failed offshore foreign policy failures (including an expensive attempt to install son Edmund on the throne of Sicily!), thus offending the barons, and all “tax payers” (especially the Jews, who were specifically “taxed” by Henry), and also for backing, favouring his unpopular Poitevin half brothers, the Lusignans. Barons revolted in 1232, in 1258 (forcing reform through the Provisions of Oxford) and again in 1263, now led by Simon de Montfort. Montfort died at Evesham in 1264, fighting Henry’s son Edward, but had caused important advances in the emergence of parliament, especially by spreading its recruitment to include “county knights and burgesses”, or “commoners”.

Three Edwards: two wins, one dud.

Edward succeeded his father, as Edward I, ruled 35 years to 1307, and ruled well. He was competent, bright and tough, winning his wars (especially in Britain, against the Welsh and the Scots) and overseeing important reform of the legal system. His son however was the hapless Edward II, ruled 19 years to 1327, losing at Bannockburn to the Scots, offending and arouing the barons, who finally deposed (and killed) him.

Some sense returned with his son Edward III, “tall and handsome like his grandfather”, who ruled a long 50 years till 1377. Also thanks again to the need to raise funds to fight the French (kicking off the 100 Years War in 1337, actually 115 years, to 1453) there were important advances in the governing relevance of the English parliament. “From 1327 the people’s representatives sat in Parliament permanently and by 1332 were referred to as the House of Commons. The British Parliament now comprised 3 familiar elements: the monarch, the House of Commons and the House of Lords… [but] no formal meeting schedule… called at the request of the King…. until this time, the House of Lords had far more influence… However 1341 the House of Commons began meeting independently…..became practice for the King to seek the approval of the Commons for new taxes….. ongoing conflict with France meant King Edward III (1312 -1377) was forced to summon the Parliament more frequently…” Edward started his French military odyssey well (eg Crecy in 1346), but despite his ability lost much ground late in his reign.

 

Magna Carta the document

What the MC asserted – overall

The MC was not a visionary “motherhood” Mission Statement but rather was quite specific, through 63 clauses or chapters.

However this detail meant its overall thrust was to strongly reinforce, and crucially delineate, a tradition now going back centuries, of a monarch consulting with representatives of the people in the determination of rights and laws.

It crystallised, clause by legalistic clause, the revolutionary idea that the power of a ruler is circumscribed, that it is not absolute, that there are other sources of authority — chiefly in the law, and in the council of peers or parliament.

Thus it also reinforced England’s important courts-focused common law tradition, already encouraged by both Henry I and Henry II, and also, ironically, by John, given credit for improving during his reign the administration of justice.

What it asserted – specifically

Important stipulations of the MC were:

1/ taxation (“scutage”) only with consent (Chaps. 12 and 14)

2/no arbitrary arrest and imprisonment, rather only by ”lawful judgement of his peers or by law of the land” (Chap. 39),

3/ thus equality before law

4/ cannot sell justice, ie an independent untainted judiciary (Chap.40).

5/ freedom of movement (Chaps 41 and 42).

6/ a 25 man committee of barons could meet anytime and override the king if he defied the Charter (Chap.61)

7/ in general, the rule of law, and law derives from “people” NOT the king or God!

What it did not do

In particular the franchise of the Charter was very limited, did not apply equally to all, rather only to a privileged small minority, and certainly not to women. Thus it was “result of an intra-elite struggle, in which the nobles were chiefly concerned with their own privileges.” It was a step in a very long journey, albeit an important step.

Why did this document become famous? Revered?

Other such documents were evident in that period, in different countries, and the MC borrows from others. “Most of its ideas, including many of its particular provisions [were] centuries old.

However it was important then andmade an impression early. Many copies were distributed, “thanks in large part to the activities of the church whose liberty was protected in chapter one.” People knew about it and responded. Carpenter: “Most people, apparently, knew about it. In 1300, even peasants complaining against the lord’s bailiff in Essex cited it.”

Then it became famous when invoked by Edward Coke in 17th C in parliament’s fight with Charles I. It became an important “rallying cry”.

Based on this elevated attention it then crossed the Atlantic to become important in the US, more even than in England? It “became an American icon”.

William Penn published an edition in 1687, and in the 17th C several colonies enacted MC as part of their law. With the Stamp Act of 1765.. John Adams and Benjamin Franklin… invoked different provisions of Magna Carta in calling for repeal. The founding fathers [used it] in drafting the Constitution, for example, in the clause “due process of law” — though that phrase was added to MC in English law only in the 14th century. Since then, Americans have paid much more attention to the document than have the British.

Did it work? Does it matter?

Yes! It matters (especially through the English-speaking world) less for its actual text than for its powerful general support for the principles of the rule of law and this law being determined not by a king invoking God’s name but by consultation with his people.

Noah Feldman: it functions “as a rallying cry, a symbol, an ideal of the rule of the law.

However there is a wider debate. “Does liberty depend on some deliberate fragmentation of power at the centre?” The Whig view of history.

Or is Hobbes right that a state can endure – and hence guarantee liberty to its citizens – only if power is concentrated, if the fist of government remains firmly clenched? Do you swear loyalty to a document or a person?

Elsewhere in Europe? No?

Does MC have any cousins somewhere in the rest of Europe?

Or does it reflect the peculiar history of constitutional development in England?

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