Post-classical history

Chapter 5
The charter defeated: the charter victorious

Because it was intended to make peace and led only to war, Magna Carta as issued by King John in June 1215 remains a shadowy thing, of greater significance in spirit than in its practical application. Many of its clauses were still-born from the moment of issue. This was a charter issued in the name of the king, beginning with his titles (as ruler of England and Ireland and still, in his own mind, of Normandy and his Continental lands, many of them in fact lost since 1204); ending with a claim that the charter had been issued under the king’s own hand ‘in the meadow that is called Runnymede between Windsor and Staines, on the fifteenth day of June in the seventeenth year of our reign’. The dating clause is significant. The date of the charter, 15 June, is now generally accepted as that on which the first copy of the charter was sealed, although the process of issue took several weeks thereafter, as further copies, perhaps as many as forty, were prepared and sent out to be proclaimed in the individual English county courts. Copies were still being distributed as late as 22 July. The dating clause also demonstrates a desire to define what was clearly an unfamiliar place of issue. Similar clauses are to be found at the end of other medieval peace treaties. Indeed, they are a means of distinguishing peace treaties from other documentary types, as things negotiated in liminal spaces, lying neither in one location nor another but at a meeting point between two territorial powers. Henry II’s treaty with Philip Augustus in 1180, for example, had been issued ‘Between Gisors and Trie’; King Richard’s in 1195 ‘Between Gaillon and Vaudreuil’. But for this peculiarity of diplomatic practice, the very name ‘Runnymede’ might be as unfamiliar to us today as it must have been to those who met there in the early summer of 1215. A contemporary, translating Magna Carta into Anglo-Norman French, was so bemused by the name that he rendered it in the wholly unintelligible form ‘Roueninkmede’.

In format and in the language of its opening and closing formulae, Magna Carta remained a royal charter. It was granted by the king, dated by his regnal year, and sealed with his royal seal (we do not need here to rehearse the old caution against assuming that John ‘signed’ Magna Carta). Albeit that it included some bizarre variations on accepted practice, claiming to be granted first and foremost to God, and under its ‘security’ clause (clause 61) nominating a committee of twenty-five barons to police its permanent enforcement, these in themselves offered no real protection. As a royal charter, issued with the king’s assent, Magna Carta could be repudiated as soon as such assent was withdrawn. Previous peace treaties, not least those between England and France, had been accompanied by the most solemn of guarantees. None of this had prevented kings, whenever it suited them, from breaking their treaties and re-opening hostilities. A treaty of 1163, for example, negotiated between Henry II of England and the count of Flanders (one of the few such treaties whose precise text has come down to us), contained detailed provision for twelve guarantors from each side to act as ‘hostages’, liable to fixed financial penalties if the terms of the treaty were breached. The total number of twenty-four guarantors, with the king or the count at their head, brings us to something very close to the number twenty-five so significant in Magna Carta. The 1163 treaty itself had been repudiated the moment when the Flemings realized the advantages to be gained by siding with the baronial rebels of 1173.

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4. King John ‘signing’ Magna Carta, as imagined by a 19th-century print-maker

The king remained a free agent, however severe the limitations his subjects might seek to impose upon his exercise of free will. As a result, as King John was to prove within only two months of the Runnymede settlement, no royal charter was inviolable. By September 1215, with most of its terms still unfulfilled, Magna Carta was a dead letter. The barons had once again thrown off their homage and made war on the king, garrisoning Rochester Castle (the gateway to London) against him. The king himself had sent requests to Rome both that Magna Carta be annulled (an annulment that Pope Innocent III was only too happy to supply) and that the rebels and their clerical supporters, up to and including Stephen Langton, be excommunicated and suspended from office. To this extent, Magna Carta in its original form never took effect. It was a peace treaty that brought not peace but war.

Its terms are themselves a bizarre combination of the over-general and what can seem the excessively precise. For those today who speak of Magna Carta as the foundation stone of democracy, what, for example, are we to make of clause 33 (‘Henceforth all fish-weirs will be completely removed from the Thames and the Medway’), or clause 50 (‘We shall dismiss completely from their offices the relations of Girard d’Athée … namely Engelard de Cigogné, Peter, Guy and Andrew de Chanceaux, Guy de Cigogné, Geoffrey de Martigny with his brothers (and) Philip Mark. …’)? For an English constitution supposedly founded upon principles of tolerance and asylum, what are we to make of the xenophobic clause 51, promising the expulsion of all ‘alien knights, crossbowmen, serjeants and mercenaries who have come with horses and arms to the injury of the realm’? In the circumstances of 1215 such precision made perfect sense. Fish weirs slowed the navigation of rivers and therefore posed a threat to inland trade. The navigation of the Thames and the Medway had been specifically guaranteed in royal charters to the men of London since at least the 1190s. The kinsmen of Girard d’Athée were amongst those exiles from John’s lands in France promoted to the custody of castles and sheriffdoms. In the summer of 1215, these were the constables and sheriffs who posed greatest threat to the rebel barons. Their names may be unfamiliar today, just as at the time the barons had difficulty in distinguishing between one Johnny foreigner and another: Guy de Chanceaux for example, is almost certainly the same man as Guy de Cigogné, mistakenly given a double identity in Magna Carta. Yet at least one man on this list, Philip Mark, is still a notorious (if nameless) figure today. Philip was King John’s sheriff of Nottingham, the archetype for the later villain of the Robin Hood legends.

Much of the second half of Magna Carta is given over to specifics: clauses 56–8, for example, on peace with Wales intended to deprive the barons of Welsh assistance; clause 59, intended to ensure a similar peace on John’s northern frontiers with Scotland. Other matters were left deliberately vague. Clauses 52 and 55, for example, defer any decision in specific disputes, over land or money, to adjudication by the baronial twenty-five, and in the case of clause 55, by Archbishop Langton. Clause 53 delays any decision on the destruction or retention of forests until the king’s return from Crusade: a Crusade on which John had little real intention of embarking, even though it is mentioned again in clause 52, to reiterate the degree to which the king, as a vowed Crusader, enjoyed the protection of the Church.

Elsewhere, although the charter touches upon matters of profound and general rather than local or temporary significance, the principles it establishes are so imprecise as to suggest deliberate caution on behalf of those who drafted it. What, for example, in any precise sense, were the ‘rights’ and ‘liberties’ of the English Church guaranteed in clause 1? Who were the ‘peers’ of clause 39, whose judgment alone could lead to the outlawry of free men? What, in any case, constituted ‘lawful judgment’? Above all, given that there was no written code of laws that applied throughout England or that was officially recognized as royal law, how was anyone to determine whether a judgment had been delivered in accordance with ‘the law of the land’ (clause 39, the most famous though also one of the vaguest of clauses)? Modern lawyers would drive a coach and horses through such imprecision. Indeed, the meaning of individual clauses was to be debated for many years after 1215. When the charter demanded (clause 6) that heirs be married ‘without disparagement’, it was to take fifty years before ‘disparagement’ was precisely defined, not just as marriage to someone of lower status but specifically to those of foreign birth. When clause 7 referred to a widow’s ‘dower’, it was not for a further ten years that dower itself was defined as one-third of a husband’s lands, and even then there were to be problems in enforcing this as a universal practice, not least in the city of London where local custom, potentially allowing a widow far less, was still being upheld thirty years later.

The first thing that should be apparent from the text (and, once again, readers are urged to read through the individual clauses), is that, for all its emphasis upon the ‘law of the land’ or ‘law of the realm’ (mentioned as guiding principles in clauses 39, 42, 45, 55, more frequently than any other concept save for the ‘reason’ or ‘reasonableness’ cited in clauses 4, 5, 12, 15, 26, 29), this was not a textbook codification of English law. Despite the fact that it was in their jurisdiction over crime that king and barons most frequently came into contact with ‘the law’ as we would today understand it, Magna Carta has virtually nothing to say of criminal procedures save for general references to outlawry in clause 39. It should also be apparent that a very large part of the document relates to the financial relations between the king as lord and his barons as subjects. Feudal ‘incidents’ (the payments owed to lords and exploited to the utmost by lords seeking to profit from lordship) loom particularly large. Not only does the charter reiterate, and in some cases clarify, the restrictions on such payments already set out in Henry I’s coronation charter of 1100, but it enters into details here to a degree not found when it turns to more general legal principles. Thus, after what was clearly considerable debate (clause 2), it specifies the ‘relief’ paid at the inheritance of an earl or a baron as £100, and that paid by a knight as 100 shillings (£5). In clauses 3–5, defining what a lord might or might not take as ‘reasonable’ profits from wardship of an under-age heir, there is a determination to cover all eventualities, for example (clause 5) by reference to ‘houses, parks, fishponds, ponds, mills. … ploughs and wainage (i.e. carts)’ amongst the property to be protected. Throughout, the emphasis upon what is ‘reasonable’ is yet further proof of the degree to which law and good lordship were themselves linked to the concept of rationality. Irrationality, by contrast, was equated with sinfulness and with lordship that was bad.

Most of the first half of the charter, and more than half of its clauses all told, are concerned with precisely those areas in which King John and his Exchequer had abused privileges of lordship that might be deemed either ‘reasonable’ or ‘customary’. Thus, there are clauses dealing with inheritance and wardship (clauses 2–5); marriage and widowhood (clauses 6–8); debt and its collection (clauses 9–11, 26–7, including debt owed to Jews); scutage, aid, and taxation (clauses 12–13, 15); lordship over fees and churches (clauses 32, 46); service including that owed for knights, castles, and for the county farms, as well as obligations to build bridges or supply corn or foodstuffs, horses and carts, and building materials (clauses 16, 23, 28–31, 37, 43); the forests (clauses 44, 47–8, 53); the profits of justice (clauses 20–2); and the particular mercantile regulations of the city of London and other towns (clauses 13, 33, 35, 41–2). Even clauses 10–11, that to a modern audience might be read as evidence of medieval anti-Semitism, respond to the fact that, in feudal terms, the Jews were the king’s personal possessions, those owing money to them ultimately owing such debts to the king. Both John before 1215 and the barons after their seizure of London had deliberately attacked the Jews, in order to profit from their money-lending or, in the case of the barons, to destroy all evidence of it, not first and foremost out of religious, let alone race, hatred.

Besides restricting the king’s profits from feudal ‘incidents’, and defining what might constitute real necessity for a lord to take an ‘aid’ or compulsory tax from his free men (clauses 12 and 15, allowing only three such obligations, to ransom a lord’s body, to pay for the knighting of his eldest son, and the marriage of his eldest daughter), a significant number of the charter’s clauses are given over not so much to the principles as to the procedures of the law. Once again, this reflects a situation in which, as overlord, the king was suspected of manipulating the law courts to increase his own lordly profits. Thus, besides the general prohibitions against arbitrary accusations (clause 38), judgments (clauses 39), and the sale of justice (clause 40), there are clauses restricting the judicial powers of sheriffs (clause 24) and insisting that the most frequently sought procedures to reclaim inheritance or land or rights to the patronage of churches (clause 18) be available speedily and locally. Clause 17, although interpreted later as providing for a permanent court at Westminster known as ‘The Bench’, was in fact a response to King John’s failure to send out regular visitations of justices to the counties (the so-called ‘eyre’). The intention here was to ensure that justice in ‘common pleas’ (that is, pleas involving the king’s universal, public, or ‘common’ jurisdiction) be speedily obtainable, either at Westminster or in the regular visitations that the Westminster justices made via the ‘eyre’. Litigants and jurors were no longer to be forced to track the uncertain movements of the king’s itinerant court. Clause 34 deals with the fear that a particular type of writ (named ‘Praecipe’, after its opening instruction to the local sheriff, ‘Order that …’) might be used to deprive barons of their jurisdiction over disputes that otherwise were being sued in the king’s rather than in the local baronial court.

In hindsight, and despite what at first glance can seem an overwhelming quantity of ‘feudal’ detail, we find much here of principle, significant to future relations between sovereign and people. Over tax, for example, the charter insisted that, beyond the three cases of necessity that were specifically allowed, no king might arbitrarily tax his subjects without first obtaining their consent. Consent itself was here (clause 14) interpreted to mean a properly summoned representative assembly both of the greater and the lesser tenants of the king, in essence a meeting not dissimilar to those that by the 1230s were named ‘parliaments’ (‘talkings together’) and that thereafter proved increasingly resistant to royal demands for tax. It was this combination of tax strike and insistence upon the right to consultation that was to lead, from the 1250s onwards, to a formalized ‘Parliament’ with a capital ‘P’: a public gathering where kings and representatives of the realm might meet.

The idea of government conducted on behalf of the ‘community of the realm’ was likewise, in the 1250s and 1260s, to dominate political debate. This too could trace a descent from the demand by Magna Carta, clause 61, that in forcing the king to obey his undertakings the baronial committee of twenty-five be assisted by the ‘commune of the whole land’. In the French version of the 1215 charter, apparently distributed for reading in the shires, this phrase was translated more potently still as ‘the community of all England’ (the ‘commune de tote Engleterre’). Magna Carta, clause 60, insisting that the privileges of the few be extended to the many, although modelled upon Henry I’s coronation charter, represents a significant step towards the recognition of public good, rather than the personal advantage of the king, as the chief purpose of the law: no longer merely the Roman imperial principle, ‘What pleases the prince has the force of law’, but a step towards the formulation, itself borrowed from the Roman writer Cicero, ‘Let the supreme law be the welfare of the people’.

Little of this would have been apparent to those who in the summer of 1215 attempted to implement the uneasy peace that Magna Carta secured. Required to dismiss his alien constables, the king delayed. Requested, as a reciprocal gesture, to surrender possession of the Tower of London, the barons refused. Expected, as a supposedly neutral mediator, to shuttle between king and barons, Archbishop Langton lost the confidence of both parties and, for his refusal to surrender Rochester Castle, earned the undying mistrust of the king. In his letters demanding Rochester’s surrender, the king pleaded ‘necessity’ (the condition that Langton had himself accepted as the chief justification of royal policy), to which Langton replied with a demand for proper ‘judgment’, citing the language of Magna Carta, clause 39. Having solemnly promised, according to clause 61 of Magna Carta, to ‘procure nothing from anyone … by which any of these concessions and liberties will be revoked or diminished’, within a month the king had appealed to the pope. The pope, having already excommunicated the rebels, on 24 August 1215, issued letters freeing John from his oaths and declaring the charter itself shameful, demeaning, unjust, and, because extracted by force, hereby annulled. These letters took more than a month to reach England, but papal excommunication of the rebels and the king’s rejection of all previous baronial constitutions was already announced on 4 September. By 17 September, the king was once again ordering the seizure of rebel lands. The barons wrote to France inviting Louis, son of King Philip, to become their king. Peace dissolved into civil war. A French army occupied London. John himself ruled little save for a militarized enclave in the English south-west. Magna Carta, the treaty that failed, was consigned to oblivion. Within nine weeks of its issue, it was to all intents and purposes redundant: so much scrap parchment for rats to nibble at.

Yet it survived. In October 1216, in the midst of civil war, John attempted to cross the Lincolnshire estuary known as the Wash. Taken unawares by the tide, he lost much of his baggage and perhaps a considerable quantity of his treasure. He himself fell ill at Newark, where he sickened and died. He left a nine-year-old boy, his son, Henry III, as heir to the throne, crowned king by a papal legate with the approval of only a small rump of John’s former courtiers. The coronation was held at Gloucester, in the greatest haste, clearly for fear that if the royalists did not move swiftly, Louis of France might be crowned in the rightful coronation church, Westminster Abbey, controlled by the rebel barons. Gloucester Abbey, where the coronation took place, was a site long associated with English kingship, close both to Worcester, where John had requested burial, and to Bristol, the principal royal garrison in the west. Above all, it was a church dedicated to St Peter, the first of the popes, to whom Westminster was also dedicated. This was to be a ceremony that advertised the pope’s protection for the new king, orphaned and a child. To broadcast their determination to rule differently from King John, the guardians of Henry III now revived the great charter of June 1215, reissuing it at Bristol in November 1216, no longer as an assault upon royal privilege but as a manifesto of future good government.

The Runnymede treaty of 1215 expired within nine weeks, rejected by king and pope. From its wreckage, there now emerged something entirely different: a coronation charter for Henry III, far more substantial than any previous coronation charter because dictated by circumstances far more perilous. In the process, whilst the legal and administrative clauses of 1215 were preserved, most of the more controversial matter was jettisoned: no security clause, no insistence upon the dismissal of the king’s alien constables, no baronial committee of twenty-five, a watering-down of the provisions to summon councils of greater and lesser tenants. Amid civil war, there was also a greater emphasis upon castles, not least in clauses guaranteeing the rights of widows who were now to be protected against the possibility that their chief residence might be a castle, and hence unsuitable lodgings after the death of a husband. This was now a charter, not a treaty. More significant than any rewriting, the charter reissued at Bristol was not simply sealed with the royal seal, revocable at the king’s will. Instead, since the boy king had no seal, it was sealed by the king’s chief minister, William Marshal, and by the papal legate, the Italian Guala Bicchieri. In lending his, and hence the pope’s, authority to the document, the legate transformed Magna Carta into a papally authorized settlement. Henceforth, it would be very difficult, for any pope as for any king, to annul. England’s liberties were won from a nine-year-old Angevin king, provoked by a French invasion, and confirmed under the seal of an Italian cardinal. So much for the idea of the English constitution as something isolated from continental politics, immunized against European influence.

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5. King John, from his tomb effigy at Worcester

As in all previous baronial rebellions, the balance of power tipped overwhelmingly in favour of royal authority, even though that authority was vested in a nine-year-old boy. Henry III’s regime not only survived but inflicted a series of military defeats upon the rebels, most notably in a great battle fought at Lincoln in May 1217. Three months later, as the result of a naval engagement fought off the coast of Kent, French reinforcements were dispatched to the depths of the English Channel. It was the rebels rather than the royalists who now sued for peace. As a token of royal magnanimity and of the boy king’s determination to rule in peace and harmony with his barons, Magna Carta was reissued, in November 1217, with minor changes to the text of 1216, sealed by both the king’s guardian and the papal legate. The reissue of 1217 was accompanied by the grant of a Charter of the Forests: a subsidiary series of clauses dealing with those issues of forest law which, in the original settlement of 1215, had been set aside for future discussion. It was in order to distinguish between the principal charter of liberties and this new Forest Charter that, as early as 1218, contemporaries began to refer to the charter of liberties as the ‘great’ or ‘Magna’ Carta.

Strangled at birth in the summer of 1215, Magna Carta was thus resurrected both in 1216 and 1217, with the explicit support of the Church. Henceforth, not only the English bishops but the pope ranked amongst its principal sponsors. Not all of King Henry III’s courtiers were so enthusiastic. The forester, William Brewer, suggested that Magna Carta was best consigned to oblivion. The bishop of Winchester, Peter des Roches, spent much of the next twenty years attempting to restore royal government to the arbitrary authority that it had enjoyed under King John. Nevertheless, in the country at large, Magna Carta had already begun to acquire totemic status as a touchstone of communal liberties guaranteeing the king’s subjects against tyranny. In 1225, desperate for a grant of taxation, Henry III once again confirmed the charter, sending exemplifications into each of the English shires. Whatever his role in the initial settlement of 1215, Stephen Langton, still archbishop of Canterbury, was a moving force behind this third reissue. Once again, this was a settlement clearly linked to European concerns. The king needed tax both to pay for the recovery of his English castles from foreign mercenaries, and to prop up what little remained of his continental empire, shaken by a French assault on Poitou and the great port of La Rochelle.

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6. Magna Carta 1217 sealed by William Marshal (right) and the legate Guala (left)

Henceforth, it was the 1225 Magna Carta and its accompanying Forest Charter that became the standard texts enshrined in law. Pared down from the more than sixty clauses of 1215 to a bare thirty-seven, Magna Carta had completed its metamorphosis from peace settlement into legislation. Pressure from the county communities, from the knights of the shire and from those whose careers were passed largely outside the confines of the royal court, led to yet further reissues during the next seventy years. In 1234, for example, after a period in which Peter des Roches had sought to restore many of the arbitrary devices of King John, Henry III guaranteed to uphold Magna Carta as a means of signalling his breach with the controversial policies of his minister. The crisis of 1234 had itself been provoked by attempts to revoke earlier charters granted by John or Henry III to particular barons. Henceforth, it was recognized that no king could arbitrarily repeal or revoke his own charters without fundamentally destabilizing the political community. Magna Carta was thus even further guaranteed against attack.

All told, between 1225 and Henry III’s death in 1272, the king promised on nearly a dozen occasions to uphold the ‘charters of liberties’, meaning Magna Carta and the Forest Charter. From the 1250s, we read of the charter being proclaimed not only in the Latin of the clergy but in baronial French and in the English of the common people. Just such a trilingual proclamation is first implied by letters sent out by papal commissioners in the autumn of 1255. Once again, it is instructive to find the Church, and indeed the pope, so prominent not only in the preservation but in the continued proclamation of the charter. This was a document that declared the liberty of the Church. As such, it was now assured ecclesiastical protection. Elevated to that hallowed atmosphere in which the Church guarded its most precious relics, it was nonetheless broadcast with the Church’s approval in the same language in which ordinary men and women bought their bread or gossiped with their neighbours.

In 1215, 1216, 1217, 1225 and again in 1265, when the 1225 charter was reissued at the height of yet another baronial rebellion, effectively with the king under close arrest, we have certain proof that the text of Magna Carta was sent into the English localities under the king’s own seal. For the most part, the king’s commitments to uphold Magna Carta involved not a full distribution of the charter but the issue of letters promising renewal and respect for its terms. By the 1220s, indeed, there was already uncertainty over the status of the various reissues. The chroniclers of St Albans Abbey, Roger of Wendover and Matthew Paris, added to the confusion here, for partisan ends deliberately popularizing a hybrid version combining elements of the 1215 and the 1225 Magna Cartas. In general, it was the 1225 version that was reported and recorded in the registers of writs and statutes that increasingly became the textbooks of legal students and professional lawyers. Even here, there was uncertainty. In 1297, when again in return for taxation and the settlement of grievances, Edward I, King John’s grandson, granted a full reissue of the 1225 charter, the text chosen for confirmation seems to have been taken from just such an unofficial lawyer’s collection. Although in theory a simple recital of the text of 1225, the 1297 Magna Carta includes a subtle change to clause 2, demanding that an earl pay a relief of £100 to inherit, but that a baron pay merely 100 marks (£66). Just such a distinction seems to have been discussed but rejected during the negotiations of 1215. It was now reintroduced, more than eighty years later, as the result of careless copying. Because Edward I was in Flanders when the 1297 charter was issued by his councillors, under the king’s seal of absence, there was a final reissue of Magna Carta in 1300, now once again distributed to the counties and cathedrals of England under the king’s great seal. This was the last. Although, thereafter, Magna Carta was ‘confirmed’ more than forty times during the course of the next two hundred years, such confirmations involved promises to uphold its terms, not a physical distribution of copies to the country at large.

Magna Carta had been sent into Ireland as early as 1216. Durham, which claimed to stand outside the ordinary jurisdiction of the kings of England, seems to have accepted the charter from the outset. Perhaps precisely because of their jurisdictional peculiarities, it was the monks of Durham who proved most assiduous in guarding Magna Carta in each of its successive issues. ‘Originals’ of the issues of 1216, 1225, and 1300 are still in the Durham archives. By contrast, the county of Cheshire, ruled by its local earl, seems not fully to have accepted Magna Carta into the 1230s, even though in 1215 or 1216 the earl of Chester had issued his own ‘Cheshire Magna Carta’, rehearsing some of the charter’s principles but combining them with provisions of purely local significance. An early French translation of the 1215 charter made its way into Normandy, where it was considered of sufficient interest to be copied by the authorities of the hospital at Pont-Audemer.

By the 1290s, there is evidence for a more general Norman interest in Magna Carta: an attempt, indeed, by various Norman lawyers to suggest that the 1225 Magna Carta had been granted not by King Henry III but by his grandfather, Henry II. As such, so the argument seems to have run, it should be applied to Normandy and to those who were otherwise governed by the laws of the kings of France. This deception was made all the easier by the fact that, after the French conquest of 1204, Normandy was soon awash with charters purporting to have been issued by earlier English kings, granting liberties which the new French conquerors found very difficult to deny. The earliest collection of specifically Norman law, the so-called Très Ancien Coutumier, is itself infused with principles and practices so similar to those of Magna Carta that either we must conclude that Magna Carta derived significant input from Norman law or, as now seems more likely, that the Très Ancien Coutumier, first recorded c. 1300, was itself deeply influenced by the 1225 Magna Carta. This would make sense, since the study of Norman law, and the emergence of Norman resistance to French taxation, culminated, in March 1315, with the issue by Louis X, King of France, of a ‘Charte aux normands’: in effect, a great charter of liberties for the Norman people guaranteeing the independence of their legal system almost exactly a century after Runnymede. Some of the laws of medieval Normandy still have effect in the Channel Islands. We are therefore confronted with the delicious paradox that those parts of the United Kingdom today keenest to guard their independence from English statute – the states (and with them the offshore investment trusts) of Guernsey and Jersey – do so on the basis of medieval Norman customary law itself infused with the spirit of England’s Magna Carta. Magna Carta was by 1300 already launched upon its international career, as a totem not just for the English but for anyone else seeking to share in English ‘liberties’.

As the crude rewritings of the ‘Norman’ Magna Carta suggest, the charter’s celebrity increased even whilst its precise historical meaning faded from memory. By the time of its last full reissue in England, in 1300, much of the text of Magna Carta had become an anachronism. New priorities now governed disputes between the king and his critics, in particular the king’s demands for tax and for the right to ‘purveyance’ (forced seizures for the needs of war) which were only inadequately covered by the terms of Magna Carta. Hence, as early as 1300, the issue of a series of supplementary ‘Articles over the Charter’, intended to clarify and to extend the provisions of the 1220s, themselves no longer deemed fit for purpose.

The charter itself continued to be confirmed, on numerous occasions in the 14th century, mostly in response to parliamentary petitions. Most involved public proclamation by the king and his ministers of their agreement to uphold the charter’s terms. Often, this was linked to parliamentary votes of taxation, or referred to specific liberties that Parliament and its petitioners wished to see enforced: over the freedom of the Church, over purveyance, over forced labour services, over particular local interests including the navigation of the Thames, or the claims of individual barons to protection from the consequences of wardship or debt. As this should remind us, Magna Carta was more often cited for its protection of individuals, ultimately as a ‘selfish’ baronial instrument, than in defence of the community at large. This tension, between private and public interest, remains a feature of its use even today. In the modern American Supreme Court, for example, Magna Carta has been more often cited in defence of individual property-holders and the rights of corporations against the federal government than in defence of the community against private or corporate self-interest.

Parliament’s role in the confirmation of Magna Carta introduces us to a further paradox. Magna Carta was intended to place limitations upon the sovereign powers of the king. As early as 1369, however, in passing legislation intended to ensure that no-one in future might alter or amend the charter’s terms, Parliament in effect laid claim to authority over and above the charter. This was a two-edged weapon, since if one Parliament sought to protect Magna Carta, what was to prevent a subsequent Parliament from claiming the power to amend or even annul it?

None of this was immediately apparent. It was the threat of royal rather than parliamentary sovereignty that continued to vex those who had dealings with Magna Carta into the 15th and 16th centuries. Although by now virtually redundant as law, superceded or contradicted by subsequent statutes, Magna Carta remained the first item in the statute books: the venerable and bewhiskered Genesis prefacing the common body of knowledge that most lawyers possessed. It was in this capacity, as a legislative relic, that it was first published, following the introduction of the printing press, in a series of statute books, beginning with a Latin text of the 1300 charter in 1508, and thereafter proceeding via a (crabbed and inaccurate) English translation in 1534. In Shakespeare’s play ofKing John(c. 1595), there is no mention of Magna Carta, even though tyranny is the central theme with which Shakespeare deals. We have seen already that arguments based upon antiquity, necessity, and rationality were crucial to the circumstances in which the charter was first issued. These same issues were to resurface towards the end of the 16th century. Thus Magna Carta remained at the centre of the political stage: a venerable actor from the past whose longevity was prized above all other aspects of performance and whose retirement the public simply refused to allow.

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