British History, 3: Magna Carta

The rapid legal development of the period following the birth of Common Law in the late 1100s culminated in the Magna Carta (or ‘Great Charter’) of 1215. Though it is worded as a grant by the king to his subjects, the Magna Carta was drafted by political leaders (especially the ‘barons,’ the king’s leading vassals) who were in rebellion from the king. It was intended primarily to reassert customary legal and political rights, some of which go back at least as far as Henry I’s coronation charter of 1100 (which was one of Magna Carta’s key models; see the page on medieval custom). The barons also wanted to preserve the new system of Common Law, while trying to restrain the ability of the king to use it in arbitrary or oppressive ways. Notwithstanding these conservative features, the Magna Carta may also be considered as a piece of legislation that provided a written, ‘official’ declaration of many rights and procedures that had not previously been clearly defined. In sum, it codified many customary principles even as it updated them to fit the needs of the moment.

Origins. This statement of legal rights and governing principles emerged from the troubled reign of Henry II’s son John (1199-1216). John began to lose political support, especially among his ‘barons’ (high nobles who held lands directly from the king), when military defeats by the French led to his loss of Normandy and other lands in France that had long been held by the kings of England. He then failed to recoup these losses after years of exacting high taxes for that purpose. Finally the barons and many others rebelled, defeating John’s troops and taking him captive. In return for being allowed to hold onto his throne, he agreed in 1215 to the terms of the Magna Carta.

Limited or Constitutional Monarchy. Magna Carta’s sixty-some clauses include many promises to limit royal authority by respecting nobles’ and freemen’s traditional rights, thereby establishing a tradition of limited or constitutional monarchy. Though John himself soon disavowed Magna Carta on the grounds that his agreement had been extracted under duress, he died in 1216, leaving as his heir his nine-year-old son Henry III (1216-72). As a minor Henry III’s rule was precarious, and even after he came of age he remained a very weak king. Thus although he frequently violated its terms, in order to gain political support he often reissued the Magna Carta and its promises of just rule. By the end of Henry III’s reign Magna Carta’s limitations on royal power were considered to be essential features of English Common Law.

Magna Carta and Common Law. Although the barons rebelled, forced John to sign the Magna Carta, and sought to limit royal power, they did not want to dismantle the legal system put into place by John’s father Henry II. The new writ-based system of property law had quickly become very popular, and the expansion of legal business since Henry’s time made any ‘going back’ virtually unimaginable. Instead, the barons accepted the newly centralized legal and governing system as it was, but sought to ensure that they would have a voice in royal policy and that the law would be applied fairly, rather than serving as a tool of royal oppression as it did at times under John.

Key Guarantees: Among the Magna Carta’s most famous guarantees is the promise not to raise new taxes without the “common counsel of our kingdom” (cl. 12). This basic idea sums up the key function of the new institution of representative government that emerged in England by the late 1200s, the Parliament. A second famous principle found in Magna Carta is expressed as a promise not to arrest or dispossess any freeman without a trial by a jury of his peers or by ‘the law of the land’ (cl. 39), which thus invokes an early form of due process. Many other clauses protect rights to moveable property, by requiring the king’s officials to compensate anyone whose goods (carts, horses, grain, etc.) were seized for pressing national needs (e.g., war). Over time, the Magna Carta’s guarantees became venerated as explicit, statutory statements of some of the most important underlying principles of the Common Law. The excerpts below include the most famous and influential clauses.

“John, by the grace of God, King of England, Lord of Ireland…, to the archbishop, bishops, abbots, earls, barons, justices, foresters, sheriffs, stewards, servants, and to all his bailiffs and liege subjects, greetings. Know that, having regard to God and for the salvation of our soul…, and for the honor of God and the advancement of his holy Church and for the reform of our realm, we have granted as underwritten by advice of our venerable fathers, Stephen, archbishop of Canterbury…, Henry, archbishop of Dublin, William of London, Peter of Winchester, Jocelyn of Bath and Glastonbury, Hugh of Lincoln, Walter of Worcester, William of Coventry, Benedict of Rochester, bishops; …and of the illustrious men William Marshal, earl of Pembroke, William, earl of Salisbury, William, earl of Warenne, William, earl of Arundel, Alan of Galloway (constable of Scotland), Waren Fitz Gerold, Peter Fitz Herbert, Hubert De Burgh (seneschal of Poitou), Hugh de Neville, Matthew Fitz Herbert, Thomas Basset, Alan Basset, Philip d’Aubigny, Robert of Roppesley, John Marshal, John Fitz Hugh, and others, our liegemen.

1. “In the first place we have granted…that the English Church shall be free, and shall have her rights entire, and her liberties inviolate, …[including] the freedom of elections [to church offices], which we confirmed…before the quarrel arose between us and our barons…
We have also granted to all freemen of our kingdom, for us and our heirs forever, all the underwritten liberties, to be had and held by them and their heirs, of us and our heirs forever.

2. “If any of our earls or barons, or others holding [fiefs] of us by military service die, and at the time of his death his heir shall be of age and owe relief [an inheritance tax], he shall have his inheritance by the old relief, namely: the heir or heirs of an earl, for the whole baroncy of an earl by £100; the heir or heirs of a baron, £100 for a whole barony; the heir or heirs of a knight, 100 shillings, at most; and whoever owes less let him give less, according to the ancient custom of fees.

3. “If, however, the heir of any one of the aforesaid is under age and in wardship [guardianship], let him have his inheritance without relief and without fine when he comes of age. …

7. “A widow, after the death of her husband, shall forthwith and without difficulty have her marriage portion and inheritance; nor shall she give anything for her dower, or for her marriage portion, or for the inheritance which her husband and she held on the day of the death of that husband; and she may remain in the house of her husband for forty days after his death, within which time her dower shall be assigned to her.

8. “No widow shall be compelled to marry, so long as she prefers to live without a husband; provided always that she gives security not to marry without our consent, if she holds of us, or without the consent of the lord of whom she holds, if she holds of another. …

12. “No scutage nor aid [types of taxes] shall be imposed on our kingdom, unless by common counsel of our kingdom, except for ransoming our person, for making our eldest son a knight, and for once marrying our eldest daughter; and for these there shall not be levied more than a reasonable aid. In like manner it shall be done concerning aids from the city of London.

13. “And the city of London shall have all its ancient liberties and free customs, as well by land as by water; furthermore, we decree and grant that all other cities, boroughs, towns, and ports shall have all their liberties and free customs.

14. “And for obtaining the common counsel of the kingdom and the assessing of an aid (except in the three cases aforesaid) or of a scutage, we will cause to be summoned the archbishops, bishops, abbots, earls, and greater barons, severally [i.e., individually] by our letters; and we will moreover cause to be summoned generally, through our sheriffs and bailiffs, and others who hold of us in chief, for a fixed date, namely, after the expiry of at least forty days, and at a fixed place; and in all letters of such summons we will specify the reason of the summons. And when the summons has thus been made, the business shall proceed on the day appointed, according to the counsel of such as are present, although not all who were summoned have come. …

18. “Inquests of novel disseisin, of mort d’ancestor, and of darrein presentment [types of legal cases] shall not be held elsewhere than in their own county courts, and that in manner following: We, or, if we are out of the realm, our chief justiciar, will send two justices through every county four times a year, who shall alone with four knights of the county chosen by the county, hold the said assizes [court sessions] in the county court, on the day and in the place of meeting of that court.

19. “And if any of the said assizes cannot be taken on the day of the county court, let there remain of the knights and freeholders, who were present at the county court on that day, as many as may be required for the efficient making of judgments, according as the business be more or less.

28. “No constable or other bailiff of ours shall take grain or other provisions from anyone without immediately paying money for it, unless the seller allows a later payment. …

30. “No sheriff or bailiff of ours, or other person, shall take for transport duty the horses or carts of any freeman, against the will of the said freeman.

31. “Neither we nor our bailiffs shall take, for our castles or for any other work of ours, wood which is not ours, against the will of the owner of that wood. …

35. “Let there be one measure of wine throughout our whole realm; and one measure of ale; and one measure of grain, namely, the London quarter; and one width of cloth…, to wit, two ells…; of weights also let it be as of measures.

38. “No bailiff for the future shall, upon his own unsupported complaint, put anyone to his law [require a legal oath], without credible witnesses brought for this purposes.

39. “No freemen shall be taken or imprisoned or disseised [dispossessed] or exiled or in any way destroyed, nor will we attack him in any way, except by the lawful judgment of his peers or by the law of the land.

40. “To no one will we sell, to no one will we refuse or delay, right or justice.

41. “All merchants shall have safe and secure exit from England, and entry to England, with the right to stay there and to move about both by land and by water, for buying and selling by the ancient and right customs, quit from all evil tolls, except for merchants from any land at war with us.

45. “We will appoint as justices, constables, sheriffs, or bailiffs only those who know the law of the realm and mean to observe it well.

61. “Since, moreover, for God and the reform of our kingdom and to better settle the quarrel that arose between us and our barons, we have granted all these concessions…, we grant them this security, namely, that the barons choose 25 barons of the kingdom, whomsoever they will, who must observe and cause to be observed the peace and liberties we have granted and confirmed to them by this charter. If we, or our justiciar, or our bailiffs or any one of our officers, are at fault towards anyone, or break any one of the above articles, and the offense is notified to four barons of the foresaid 25, the said four barons shall come to us (or our justiciar, if we are out of the realm) and, laying the transgression before us, petition to have that transgression corrected without delay. And if we do not correct the transgression…within forty days, reckoning from the time it has been related to us…, the four barons aforesaid shall refer that matter to the rest of the 25 barons, who shall, together with the community of the whole realm, distrain [to compel by seizure of property] and distress us in all possible ways, namely, by seizing our castles, lands, possessions, and in any other way they can, until redress has been obtained as they deem fit, saving harmless our own person, and the persons of our queen and children. When redress has been obtained, they shall resume their old relations towards us.

62. “And all the hatreds and bitterness that have arisen between us and our men, clergy and lay, from the date of the quarrel, we have completely remitted and pardoned to everyone.

63. “Wherefore we will and firmly order that the English Church be free, and that the men in our kingdom have and hold all the aforesaid liberties, rights, and concessions, well and peaceably, freely and quietly, fully and wholly, for themselves and their heirs, of us and our heirs, in all respects and in all places forever, as is aforesaid. An oath, moreover, has been taken, as well on our part as on the part of the barons, that all these conditions aforesaid shall be kept in good faith and without evil intent. Given under our hand – the above named and many others being witnesses – in the meadow which is called Runnymede, between Windsor and Staines, on the fifteenth day of June, in the seventeenth year of our reign.”