Magna Carta

by Dan Jones

  *2 The loss of John’s baggage train, including the crown jewels, very quickly became a farcical and defining image of the end of John’s reign. Ralph of Coggeshall described it briefly and implied that it was a hiccup on John’s travels from East Anglia to the Midlands (Stevenson, Radulphi de Coggeshall Chronicon Anglicanum, pp. 183–4). When Roger of Wendover came to write up the event in later years, he described it as a major disaster.

  10

  Afterlife of the Charter

  1215–2015

  The boy king, Henry III, was crowned on 28 October at Gloucester Abbey, with a small corps of long-suffering loyalists including William Marshal and papal legate Guala Bicchieri alongside him. Prince Louis’s forces still overran London and the South-East and it was far from clear that the nine-year old Henry would ever recover the formidable royal rule that had been enjoyed by his Plantagenet father, uncle and grandfather. Thus, besides the immediate military necessity of continuing the war against the rebels and the invaders, it was also now vital that the men around Henry offered their enemies some grounds for reconciliation – some gesture that allowed them to believe that with King John dead and buried (his tomb was erected in Worcester Cathedral), the greatest obstacle to peace had been removed. Letters went out to barons offering recompense and restitution to any who would come over to the new king’s side. And Magna Carta was reissued for the first time on 12 November 1216.

  The effects of this new Magna Carta were not immediate. The war dragged on into 1217, heaping further misery on both sides: William Marshal’s biographer reports having seen a hundred Frenchmen lying slain on the ground between Winchester and Romsey, with hungry dogs ripping the flesh from their bones.1 Eventually, however, the resolve and resources of the French began to pall. Louis left England to attend to business across the Channel for eight weeks in the early spring, and although he came back, during his absence there was a trickle of defections from the rebel camp. Chronicler Roger of Wendover believed that for many of the rebels, the only difficulty in switching sides was the shame of being thought a turncoat.2

  Yet for all the flagging enthusiasm of the opposition and the growing confidence of the men around Henry, it was several months before a decisive moment was reached in the war. This came at the Battle of Lincoln, on 20 May 1217, when a powerful and impressively armed force led by William Marshal descended on the castle and city, routing the rebels who were camped there and capturing a large number of their leaders. It was a crushing defeat for Louis, from which his cause would never recover. In August 1217, Hubert de Burgh destroyed a French fleet off the Kentish coast at the Battle of Sandwich, and almost immediately a downcast Louis sought terms on which he could depart England without losing too much face. Peace was made in the Treaty of Lambeth on 20 September, and Louis departed the country with a massive bribe of 10,000 marks (a quarter of England’s royal annual revenue) to salve his wounded pride. Once he was gone, the business of restoring some normality to government after two years of exhausting civil war began. Magna Carta was once again reissued. This time it was accompanied by a new grant: the Charter of the Forest.

  Simon de Montfort (c.1208–65), Earl of Leicester, one of four local luminaries adorning Leicester’s Haymarket Clock Tower, which was built in 1868. This powerful nobleman played a notable role in Magna Carta’s evolution during the thirteenth century. The charter was reissued in 1265 under his direction, as he led the opposition to John’s son, Henry III. Its association with the English parliamentary tradition dates from this period.

  The 1216 and 1217 reissues of Magna Carta contained some important variations from the text of the original made at Runnymede. Strongly worded statements on foreign ministers, which had featured in 1215, were quietly dropped, since many of the most competent men who surrounded Henry III in his minority were themselves of alien birth. The clauses regulating purveyance were redrawn, and there were substantial tweaks made to provisions for widows’ rights and the procedures for recovering debts, both to the Crown and to Jewish moneylenders. A clause was introduced in 1217 ordering the destruction of castles that had been erected during the war. New restrictions limited the frequency with which sheriffs could hold their courts. The commitment to investigate historical abuses dating back to Henry II and Richard I’s reigns disappeared, although the Charter of the Forest introduced a huge raft of new legislation dealing specifically with woodland law, which promised specifically to return the limits of royal forest land to those that had been in existence in 1154.

  And it was from 1217 that Magna Carta earned its famous name – in order to differentiate it from the Charter of the Forest.

  It is telling that both the 1216 and 1217 reissues of Magna Carta were presented without the ‘security clause’. The question of how to restrain a king out of control would remain alive for the duration of the Middle Ages and beyond, but in 1216 and 1217 it was shelved. Partly this was because its openly bellicose methods had justified civil war instead of promoting peace. More important, however, was the fact that in just two years Magna Carta had shifted in purpose. Although reissued on both occasions from the jaws of civil war, Magna Carta was no longer primarily a peace treaty imposed by the king’s enemies. It was an offering by the king’s friends, designed to demonstrate voluntarily the commitment of the new regime to govern by principles on which the whole realm could agree. Magna Carta had mutated from a text of compromise into an assurance of good faith. As it was copied out by clerks and distributed to the shires of England to be read aloud in the sheriffs’ courts, the charter had taken on a new purpose.

  It did not end there. For the rest of Henry’s reign – indeed, for the rest of the thirteenth century – Magna Carta would be reconfirmed and reissued at moments of political instability or crisis. In 1225 Henry III turned eighteen and another, revamped version of the charter was published, given by the king – according to the preamble – ‘of our own spontaneous goodwill’ (spontanea et bona voluntate nostra).3 This was slightly disingenuous. As Clause 37 of the 1225 edition of Magna Carta made clear, the charters were in fact reissued as one side of a political bargain. The king promised to observe and uphold the customs of the realm, and in return ‘all of our realm have given us a fifteenth part of all their movables’. In other words, the king swapped a concession of liberties for tax revenue. This would become an enduring practice. During the course of the thirteenth and fourteenth centuries the English constitution would become anchored by the principle that the king exercised his right to tax his subjects only if he agreed to remedy and reform government. Here, in the 1225 edition of Magna Carta, that idea was made explicit for the first time.

  Further reissues followed. In January 1237 both charters were again confirmed in binding and perpetual form, protected by a third ‘small charter’, whose witnesses included a few old men who had been at Runnymede in 1215. Once again a tax was granted. And by this time something of a myth of Magna Carta had started to grow. The charter was widely circulated with each revision and reissue. Magna Carta was referred to frequently in legal cases, barons began to offer charters of liberties to their own tenants, which were clearly modelled on the form and content of Magna Carta, and the charter was still protected explicitly by the Church. English parish churches were the venues for readings of Magna Carta in the vernacular. Excom-munication was pronounced as the penalty for disobedience in both 1225 and 1237; on 13 May 1253 a confirmation of the charters took place in Westminster Abbey, in which the Archbishop of Canterbury and thirteen bishops passed the familiar sentence of excommunication on those who ignored Magna Carta’s provisions. (The saints called upon to observe the sentence included Edward the Confessor and Thomas Becket, both of whom had played their own small roles in the history of opposition to John and his Plantagenet relatives.) When the sentence was passed, the bishops all threw down the lit candles they had been holding and said together: ‘Thus are extinguished and reek in Hell all those who attack this sentence.’ The king promised to guard Magna Carta in all its terms,
which he declared was his duty as a man, a Christian, a knight and an anointed king.

  In the century that followed John’s promulgation of the charter at Runnymede, the collapse into civil war and the king’s death, Magna Carta was probably copied out, in its various editions, more than a thousand times. There remain in existence more than a hundred medieval copies, ranging from those official exemplifications of Magna Carta 1215, held in London, Salisbury and Lincoln, to privately made copies held in abbeys and archives. One of the latter is the elegantly scripted copy that exists among the records of Cerne Abbey in Dorset – a hybrid of the 1217 and 1225 editions, with the Charter of the Forest bolted directly on as though it were part of the same treaty.4 And these were not merely of antiquarian interest. The importance of the charter was clearly and regularly stated. Even where its clauses grew irrelevant and obsolete, much importance was still attached to the idea of Magna Carta as a bargaining chip, particularly in relation to taxation.

  In 1242, at one of the earliest recorded parliaments in English history, Henry III requested financial aid from the realm for a military expedition to France. He was refused, on the grounds that previous grants of taxation had not resulted in good governance, ‘because the king had never, after the granting of the thirtieth [i.e. his requested tax], abided by his charter of liberties, nay had since then oppressed [his subjects] more than usual’.5 When Henry and his eldest son Edward found themselves embroiled in a long war against Simon de Montfort, Earl of Leicester, during the 1250s and 1260s, Magna Carta was again at the heart of the political wrangling. When de Montfort was at the peak of his powers during the first half of 1265 he not only forced Henry and Edward to swear an oath to obey his own constitution, which de Montfort had established the previous year, but also required the king to reconfirm Magna Carta and the Charter of the Forest. In a sense this took the charter back to its original state – the weapon of a radical rebellious faction in English politics seeking to extract promises from a king by intimidation. But de Montfort’s insistence on reconfirming the charters in 1265 was also an illustration of just how symbolically potent the mere name of Magna Carta had become for anyone seeking to put their mark on English government. De Montfort sought legitimacy. He found it by wearing the badge of Magna Carta.6

  Henry III confirmed, or reissued, Magna Carta on average about once every five years during his reign – and increasingly the charter was promulgated in French and English as well as the Latin in which it had first been written. It was known in Normandy, where it became a model for charters of liberties negotiated there. By Henry’s death in 1272, Magna Carta had become a political commonplace, whose significance, if not its precise detail, was etched deep into the minds of Englishmen of almost every literate rank. But the final, and in some ways definitive, version of the charter was produced not under Henry III but during the reign of Edward I (1272–1307).

  The reign of this tall, imposing, warmongering king was – although broadly more successful than that of his father and grandfather – still troubled by moments of crisis. The worst came in 1297, when the crippling costs of Edward’s wars of conquest (in Wales and Scotland) and resistance (in Gascony) were rejected by a coalition of barons and bishops, who revolted en masse against his heavy-handed rule and relentless financial demands. The compromise that was thrashed out included the Confirmatio cartarum (Confirmation of the Charters) of 10 October 1297, by which Magna Carta and the Charter of the Forest were reissued once more, accompanied by other concessions and guarantees of good government. Not all of these would be kept by the king or his descendants – in fact, the history of Magna Carta is largely the history of kings failing to stick to its terms. All the same, by the end of the thirteenth century a peace treaty that had lasted just a few weeks more than eight decades had become, in many ways, the founding stone of the whole system of English law and government.

  Edward reissued Magna Carta and the Charter of the Forest for one final time in 1300. Subsequent medieval kings confirmed the charters’ terms many times over, but Magna Carta was never again to be copied out and distributed in the same formal fashion as had first occurred in June 1215. Nevertheless, it was appealed to dozens of times in parliamentary petitions and private legislation. It also gave a model for the baronial opposition movements that sprang up during the reigns of Edward II (1307–27) and Richard II (1377–99), both of which attempted to restrain the king by drawing up ordinances and contracts that restricted his behaviour and attempted to force him to rule by co-operation with his leading subjects. Inevitably, time stripped Magna Carta of legal relevance. But its influence – and its legend – survived.

  *

  By the sixteenth century, Magna Carta was a legal antique. Parliaments still made occasional use of it: in 1497, for example, a Parliament of Henry VII passed an Act which aimed ‘to prevent the great deceptions involving weights and measures practised for a long time within this his realm contrary to the statute of Magna Carta and other statutes’.7 And the charter was preserved in the wider public memory thanks to the arrival of the printing press: the first printed edition was issued by Richard Pynson in 1508, and Magna Carta was subsequently included in a prominent position in legal handbooks and collections of statute, which reinforced the idea that it was the primal law of the land.8 But Magna Carta could scarcely be said to have dominated constitutional discourse as it had in the thirteenth century – not least, perhaps, because its basic content was so much at odds with the political mood of the times. King John’s submission to the pope in 1214 and the charter’s explicit protection of the rights of the English Church would come to sit rather uneasily with the Tudor Royal Supremacy that was created by Acts of Parliament in the 1530s. When Shakespeare wrote his history play King John, probably in the mid-1590s, there was no mention in it of a charter whose relevance was clearly thought to escape the minds of London’s theatre-going public. For more than a century Magna Carta was ignored, if not forgotten.

  It was not until the seventeenth century that Magna Carta returned to real prominence in England and beyond. For this was an age when the basic relationship between Crown and subjects would once again come under intense examination. First, there were the civil wars that broke out under Charles I, in large part because the king had determined to govern by autocratic, arbitrary and absolute means, attempting to revive feudal aspects of the monarchy that had long been abandoned, and using his own will to override English laws and customs. Charles’s opponents searched for historical precedent and parallel through which they could state their case against tyranny – and they alighted upon Magna Carta, a seemingly perfect example of an out-of-control king from centuries past being brought into line. Thus, under the Stuarts the great charter designed to restrain the Plantagenets was reborn. It was taken cheerfully out of its historical context and held up as an ‘original’ constitution – proof that Charles I was betraying not only his own people but English history at large.

  At this time Magna Carta was championed most fiercely by the lawyer Sir Edward Coke, who, since the days of James I, had been convinced not only of this ancient treaty’s usefulness as a bulwark against Stuart tyranny, but also of its monumental, totemic importance in the broader landscape of English history. In 1619, while condemning abuses in royal government on the grounds that they contravened clauses of Magna Carta, Coke told the House of Commons that the charter had earned its name ‘not for the largeness but for the weight’.9 He cleaved to the idea that the king had no right to tax his subjects without their consent, and he grounded that belief in the historical struggles that had produced Magna Carta.10 Coke drafted the Petition of Right, passed by both Houses of Parliament in defiance of Charles I’s attempts to collect forced loans and arbitrarily imprison his enemies in 1628: this was a very conscious attempt to bind Charles to certain principles of government in precisely the same way that John had been bound by the barons in 1215. Thereafter, Magna Carta was cited at other moments of tumult and crisis during Charles’s reign, including t
he trials of royal allies the Earl of Strafford (1641) and Archbishop Laud (1645).*1

  The great lawyer Sir Edward Coke (1552–1634) in his role as Recorder of London, as painted by Gilbert Jackson in 1615. A thorn in the side of both James I and Charles I, Coke was almost single-handedly responsible for the ‘rediscovery’ of Magna Carta during the years preceding the civil wars in the 1640s. After centuries of decline, and in an era in which the Stuart monarchs were hankering after rule by ‘divine right’, Magna Carta was once again at the heart of politics.

  The revival of Magna Carta – or at least, the idea of Magna Carta – during these years of chaos and civil war added to the mythical status of the document itself, and as a result it began to occupy a cherished place in the story of the English constitution. The realm emerged from the seventeenth century with a sense of the sequential history of English liberty: a history (later associated with the ‘Whig’ approach) that began with King John at Runnymede and culminated in the passing of the Bill of Rights in 1689. There was, admittedly, tempting ground for believing this to be so at the time. The Bill of Rights was not just loosely modelled on Magna Carta; it sprang out of an age that offered very obvious historical parallels with the early thirteenth century. In 1215 English rebels had secured a charter of rights and attempted to bring a foreign prince to the throne in place of a tyrant. In 1688–9 English rebels actually succeeded in doing precisely that, albeit in a different order, by chasing the Catholic James II from the realm and inviting James’s Protestant son-in-law William of Orange to rule in his place, and then securing a broad-ranging statement of English law and custom that would be revered for generations afterwards.

  Yet it was not only in England that Magna Carta was to have a profound influence on constitutional development. The second way in which the charter bore down upon the seventeenth century was in its adoption as the basis for the emerging constitutions of the New World. The principles of founding charters had been taken across the Atlantic with the first English colonists, where communities of settlers up and down the Eastern seaboard, from Massachusetts to Georgia, established their governments from the outset according to ideas that they – following Coke – thought had originated in Magna Carta. The colonists saw themselves as English freemen, whose rights were to be afforded precisely the same protection as those in the old country.