England’s Magna Carta enshrined fundamental rights and liberties in the western legal tradition–but how was the Charter created and why?
In 1776 the Second Continental Congress took up the idea of independence from England and from this emerged the Declaration of Independence, written by Thomas Jefferson. The Declaration was not merely a protest over taxation. It was a justification for leaving the British Empire and as such Jefferson paid particular attention to the list of grievances that occupies the latter two‐thirds of the document. The colonists saw themselves as free Englishmen, and as such were heirs to the rich tradition of rights that Englishmen enjoyed. The grievances of the Declaration of Independence were meant to show how George III had betrayed the colonists’ trust. 1
That trust—the rights and liberties of the English—was encapsulated in the documents that made up the English form of government. Winston Churchill wrote, about the U.S. Constitution that it was “a reaffirmation of faith in the principles painfully evolved over the centuries by the English‐speaking peoples. It enshrined long‐standing English ideas of justice and liberty.” 2 Those ideas and principles have their foundation in the Magna Carta.
What lead to the creation of the Magna Carta?
The Magna Carta, or Great Charter, was sealed in 1215, by King John I, at a meadow some twenty miles west of London along the River Thames, but the seeds of the baron’s revolt that led to it were planted during the reign of John’s father Henry II.
When Henry came to the throne the kingdom had been torn by a civil war between Henry’s mother Matilda, who was the daughter of Henry I, and Stephen whose mother was the daughter of William I. Matilda was named heir by her father but during the war Stephen wrested control of the kingdom away from her. When Stephen’s own heir died, he agreed to the Treaty of Winchester in 1153, which named Henry II as heir to Stephen. This arrangement ended the civil war, but Henry inherited a kingdom which was in disarray. When he became king, Henry had already inherited the duchy of Normandy, along with the counties of Maine and Anjou. He also acquired the duchy of Aquitaine by marrying Eleanor, whose marriage to the French king had recently been annulled. He possessed more land in France than even the French king, and then he inherited the kingdom of England. 3
Henry’s inheritance came with a variety of financial challenges. The Welsh and the Scots had both taken advantage of the anarchy of the civil war to make incursions into England and Henry needed to gain those lands back. In addition to this, the French king, who did not appreciate Henry occupying such a strong position and possessing so much French land, made holding on to the French lands into a never‐ending process. Henry’s attempts to maintain control over his lands would require greater demands on his barons. He increased knight service in order to increase scutage, the payment a baron could make in lieu of sending knights to serve. 4
The demands on the barons only increased after Richard I became king. He was very different from his father. Where Henry II had been an able administrator, Richard was more interested in adventure and war. Henry had reformed and improved the royal system so it was more efficient at raising money and operating in his absence. Richard increased the demands for overseas service and extended service, which resulted in increased scutage payments, as well as continuing the increases instituted by Henry. 5
Richard’s demands for more money came from his desire to travel to Palestine for a Crusade to retake the Holy Land from the Muslims, having sworn to go on this crusade with the French king Philip Augustus. Philip, claiming illness, returned to France and began working to undercut Richard and deprive him of his lands, coopting Richard’s brother John in the process. Richard returned to England, having successfully retaken Jerusalem, to put his kingdom back in order. As he travelled through Austria, Richard was taken hostage, and a large ransom demanded of England. When the ransom was paid, Richard embarked on the long process of reconquering and restoring his lands. The crusade, ransom and reconquest, as Richard’s accounts show, were expensive and England paid heavily for it. 6
Richard died while reconquering his lands, leaving no heirs, and thus giving John the chance to become king. John did not have the military abilities of either his father or brother, but he did understand the working of the royal administration. When he lost his French lands, he used his knowledge of the administration to increase the royal treasury to an extent his father and brother had not even imagined. John increased scutage and required it more often, required higher returns from the sheriffs in the administration of the shires, and claimed more lands as royal forest land, which allowed him to profit from all administration of justice on those lands. John also administered justice arbitrarily, denying many people access to the courts and selling his justice to others. John also increased the fees noblemen paid to receive their inheritances and deliberately drove others to the brink of financial ruin. 7
John’s excesses led to increased dissatisfaction among his barons. John’s character did not inspire loyalty among his barons, in part because he had shown them an insatiable greed and a lack of military ability. The more John schemed to return to the Continent to win back his French lands, the more restless the barons became. While many of John’s moral failings were also common in Henry II and Richard I, they spent so little time in England, trusting the kingdom to govern itself in their absence, that these failings were less noticeable. John remained in England full time and in unscrupulous nature of his character were fully exposed to the barons. 8
By the year 1215 the barons had had enough. There had already existed some resistance, when barons were slow to send requested troops or to pay scutage, and on occasions there were absolute refusals to fulfill these feudal obligations, but in 1215 this resistance was becoming more organized. This resistance became a full civil war, with the barons taking control of London and preventing John from having access to his treasury. This civil war culminated at the meadow at Runnymede where John sealed the Great Charter his barons wanted. The goal of this charter was force specific policy changes on John as well as to place some more general limits on the monarchy and guarantee certain rights that John was obligated to protect. 9
How was the Magna Carta revolutionary?
The Magna Carta dealt with a variety of issues in its clauses. There were a few of them that were very specific, dealing with problems that only mattered to those barons at that time. Clause 33 require that all fish‐weirs, or barriers that were designed to trap fish in a river, to be removed from the Thames and from throughout England. Clause 50 demanded that certain men be removed from their offices in England. Clauses 58 and 59 dealt with the return of hostages to Wales and Scotland respectively. 10
Another type of clause in the Magna Carta were those that dealt with specific policies. One prime example of this is Clause 17, which established a permanent home for the common pleas court. This clause meant that the barons would no longer have to chase the king’s court around England in order to find justice. Clause 35, set a standard of weights and measures for wine, cloth, ale, and grain. 11
The most important clauses were those that led to bigger principles, the type of principles of which Churchill wrote. In Clauses 12 and 14 the barons extracted a promise that extraordinary feudal aids could only be granted by the common counsel of the kingdom and then set a procedure for calling together a council for that purpose. Similarly, Clause 16 guaranteed that no one should be forced to give greater service than that required by their feudal oath. In Clauses 28, 30, and 31 the king’s officers could not take grain or chattel, horses or carts, or wood for castle repair, without either paying for them or gaining the owner’s permission. 12
There were several clauses in this category that deal with justice and would be far‐reaching. Clauses 20 and 21 specified that a free man could only be amerced, or fined, according to the degree of the crime committed, and only on the oaths of “good men from the neighbourhood,” and that earls and barons could only be amerced by other nobles. Clause 38 forbade the king’s officers from putting any man through an ordeal without trustworthy witnesses. Clause 39 promised that “no free man shall be captured or imprisoned or disseised [sic] or outlawed or exiled or in any way destroyed…except by the lawful judgment of his peers or by the law of the land.” The king promised in Clause 40 that he would not sell justice or deny justice to anyone. 13
From these few examples it is possible to see that the Magna Carta was, in many ways, foundational for future English and later American constitutional development. The document was reissued several times during the thirteenth and fourteenth centuries, to reinforce the arrangement it made. When it was reissued in 1225, for example, Clause 37 made the nature of the political bargain clear by showing that it was a promise from the king to maintain the customs and liberties of the people and to remedy grievances in exchange for tax revenue. 14
The nature of this agreement, and the specific liberties and rights mentioned in the Magna Carta over the various versions were the root of arguments made by later legal experts seeking to make reforms on the British form of government. These legal experts, such as Sir Edward Coke, saw the Magna Carta as a bulwark against tyranny. To them it had saved England by establishing basic civil and political rights, and that it had placed the king himself under the law. They spoke of rights such as parliamentary consent for taxation, due process of the law, and trial by jury. Coke, speaking before the House of Commons in 1619, condemned Stuart attempts to tax without Parliament as an abuse of royal government and a contravention of the clauses of Magna Carta. 15
William Blackstone also viewed the Magna Carta as “the principle bulwark of English liberties.” Even the elder William Pitt, revered in the colonies as a great Prime Minister and friend to the colonies, referred to the Magna Carta as the “Bible of the Constitution.” These were men who were highly influential on the colonial intellectuals. Coke was an important part of the standard legal education, and legal scholars throughout the colonies frequently cited both Coke and Blackstone in their writings about the common law. 16
One could argue that Coke and Blackstone, among others, were merely using the Magna Carta to further their own political reforms and that it did not do everything they purported. Clauses 12 and 14, which forbid the demanding of scutage without common counsel and then set a procedure for calling the barons for that counsel, were cited as the requirement that the king must ask the representatives of the people for taxes, and as the beginning of Parliament. These clauses, however, merely set a procedure by which the king could summon his barons and ask them for extraordinary feudal aids, and, therefore, was not really the beginning of Parliament. 17 While Parliament as we know it today was not truly established until the Model Parliament of 1295, 18 there were certainly many in the seventeenth century who saw Magna Carta as its inspiration, such as Coke and Blackstone.
Whether or not Blackstone and Coke were merely using these arguments to further reforms, or they believed that they were advancing arguments based on the history of the Magna Carta, they did sway others that certain rights were established by the document. Rights such as trial by jury and taxation through representation would find their way into the political lexicography, even forming the basis of the American Revolution.
Clauses 20, 21, 38 and 39 can easily be interpreted as establishing a right to trial by jury. These clauses make it clear that free men could not be punished for crimes without the testimony of good men from their neighborhood, or from other barons if they were members of the nobility. In fact, these clauses could be merely reinforcing more ancient customs. Under William I the royal court had responsibility to try all cases where his vassals had a right to trial by his peers. This court authority was also extended to the lesser courts for smaller claims as well. Before the Norman invasion, the Anglo‐Saxon court system included plaintiffs making oaths accusing a defendant of an offense, the plaintiff supporting that claim with oaths from local men, the defendant making a counter‐claim of innocence through an oath, and the defendant supporting that claim with oaths from local men as well. 19 These clauses in Magna Carta might have been a reminder to the king that a defendant could not be found guilty without these oaths.
Likewise, Clauses 12 and 14 have often been interpreted as the establishment of Parliament as they demand that the king must ask a council of his barons for extraordinary feudal aid. While one could suggest that this is a requirement that the king get consent from representatives of his subjects for taxes, this would be incorrect. Feudal oaths taken by the barons already promised certain obligations to the king and these clauses, along with Clause 16, merely reinforce to the king that he can not take more simply by demanding it.
These misinterpretations of the clauses of Magna Carta can be seen in Thomas Jefferson’s writing of the Declaration of Independence. Jefferson argued that George III obstructed the administration of justice (Clause 40), imposed taxes on the colonists without their consent (Clauses 12,14), and deprived them of trial by jury. 20
The real significance of Magna Carta, however, is in general theories. For one, the barons were successful in forcing the king to grant a written charter of rights, proving that kings could be brought to terms. Another important result of this document was that the king was not only the man who made the laws, but was also under the law, an idea that Jefferson would revisit. As the Magna Carta was reissued over the years it became an assurance of good faith, that the king would respect certain rights contained therein, and, in return, he could expect loyalty from his subjects. Finally, the original issue of Magna Carta contained a security clause, Clause 61, that stated that if the king violated the terms of the charter then the barons could revolt and force him to comply. 21
These principles became an important influence for the Declaration of Independence. Thomas Jefferson had previously argued that “his Majesty…is no more than the chief officer of the people, appointed by the laws, and circumscribed with definite powers.” 22 Thus, is was a logical progression for Jefferson to suggest that after violating so many of the rights of the colonists, the colonists had a right to choose a new chief officer. He stated this in the Declaration by stating that “a Prince, whose Character is thus marked by every act which may define a Tyrant, is unfit to be the Ruler of a free People”
The Declaration of Independence was the colonists’ opportunity to explain why they had a right to leave the British Empire. Jefferson argued that George III, like John several centuries earlier, had violated the trust of the people that he, a chief executive, owed to them. The Declaration could only be seen as justification for revolt because of the barons’ success in forcing John to issue the Magna Carta and the rights contained in that great document.
1. Jon Meacham, Thomas Jefferson: The Art of Power, New York: Random House, 2012, 29; Joseph J. Ellis, American Creation: Triumphs and Tragedies at the Founding of the Republic, New York: Alfred A. Knopf, 2007, 55.
2. Winston Churchill, The Great Republic: A History of America, Winston S. Churchill ed, New York: Random House, 1999, 92.
3. Bryce Lyon, Constitutional and Legal History of Medieval England, New York: Harper & Row, 1960, 126, 228.
16. Lyon, 311. David McCullough, John Adams, New York: Simon & Schuster, 2001, 43; Bernard Bailyn, The Ideological Origins of the American Revolution, Cambridge, MA: Belknap Press of Harvard University Press, 1967, 30–31. The colonists would break with Blackstone over his views on members of Parliament representing the people of the whole kingdom rather than only those who had directly elected each of them.
22. Thomas Jefferson, “A Summary View of the Rights of British North America,” The American Revolution: First‐Person Accounts by the Men Who Shaped Our Nation, T.J. Stiles, ed, New York: Perigee, 1999, 47.