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Magna Carta

Those who went through the British school systems, as well as many on this continent, would tell you that Magna Carta is the fundamental document of English Common law, upon which not only modern British law, but also modern Canadian and American law are based. But what does that really mean? The Great Charter (as Magna Carta translates into English) is not a constitution (as some Americans often mistakenly believe). It does not set up an entire parliamentary system (as some British folk often assume). When the Charter was drafted, those who did the work had no intentions of founding a new government. In fact, most of the articles in the Charter are specific responses to particular problems in early thirteenth century England. Many of them did have long-term implications in English history, but like any historical document, the articles received differing interpretations at each period. What I hope to give you in this article is the background to understand the specific circumstances that lead to the Barons' Revolt, which culminated in the signing of Magna Carta. And to do this, we must meet up with English Common Law.

The Norman Conquest of 1066 had imposed a fairly centralized royal government over the whole of England which proved to have staying power. William I instituted a pyramidal system of government that complemented to some extent the system already in place in the late Anglo-Saxon period. Two types of units were in place. The local units were a holdover from the Anglo-Saxon period, wherein the basic unit was the village (or vill); a group of vills formed a hundred, and a group of hundreds formed a shire or county. Both the hundred and the shire had their own courts, consisting of all the free men in that jurisdiction. There were also the feudal units, of which the basic unit was the manor; many manorial lords were able to successfully take over the hundred courts in their vicinity and turn them into de facto manorial courts. The king, who officially owned all secular land in England, distributed land to his tenants-in-chief (who usually had the rank of earl) in return for military service (and later, rents). These great magnates in turn gave land to their vassals in return for rent and military service, and so on down the line..

The system of law which grew out of this resulted in hundreds of courts claiming jurisdiction over various peoples. The tenant who found himself holding land from a number of overlords often found this quite confusing, not to mention the fact that particularly in manorial courts, the interpretation of customary law was at the whim of the lord of the manor--which could be a blessing or a burden, depending on the lord. The right to dispense law in one1s jurisdiction was seen by the lords as one of their fundamental rights over their vassals. It is not surprising to note that the great magnates of the eleventh and twelfth centuries, by right of these manorial courts, became powerful figures indeed. As time passed and these lands became more and more associated with particular families, it became clear that should a weak king come to the throne, chaos might ensue.

This, of course, happened during the reign of Stephen and Matilda (1135-1254). Upon the death of Henry I Stephen was able to seize the English throne before his cousin, Henry's daughter, could arrive in England. The next two decades saw each party gain the upper hand several times, only to have allied barons (earls and other magnates) switch alliances at crucial moments. Neither was strong enough to effectively control England by force or to gain the loyalty of a majority of the barons for any extended period of time.

When Matilda's son, Henry II, came to the throne upon the death of Stephen, he was determined not to make any of the same mistakes, but rather to clearly establish his authority over England. The method he chose was the extension of royal law--the birth of what would evolve into English common law. Prior to Henry II, royal law had been most prominent in the body of the curia regis -- the court consisting of the King, the great magnates, and the king's financial and administrative officers, including the justiciar (the king's official representative in legal matters and during his absence), the chancellor, and the exchequer. The king also delegated magnates to preside over local courts, but took a hands-off approach in most matters of justice not directly affecting the Crown. What Henry II did is to create a bureaucracy where none had existed before, staffed more and more by professionals, even if headed by a noble. And the courts were particularly affected by this "Royal jurisdiction and royal law" were imposed, says Berman "upon criminal and civil matters which had previously been under local and feudal jurisdiction ....and law". The result was the creation of a system of royal courts in each county, presided over by itinerant professional judges traveling a circuit. Methods of summoning defendants were standardized, as were penalties, and the concept of trial or decision by a jury of one1s neighbors was enshrined, as was the distinction between civil and criminal cases. Perhaps most significantly, the rather difficult concept of "seisin"-- the right to occupy land, regardless of ownership--was developed. One who had seisin of land had the right to occupy that land, no matter who was actually living there or who "owned" it. And disputes and land transfers thus came under the jurisdiction of royal courts--and left the control of feudal courts.

Thus, from a legal standpoint England at Henry II's death was a far different place than it had been when he ascended the throne. No longer were manorial courts to be given jurisdiction over criminal matters or land transfers--these were matters for the royal courts, which were increasingly staffed by professionals and which often ruled against the great magnates in favour of the Crown. The functions once performed by the curia regis were increasingly delegated to professional bureaucrats overseen by one of the great magnates. And Henry had taken other steps to increase his own holdings in England by placing large swaths of land into forest. Forest lands were not necessarily those with trees, but rather, were private hunting preserves in the direct possession of the King. Strict regulations about the cutting of trees, the killing of game, and the use of other fruits of the forest, such as nuts, were imposed on these regions, and the people who lived there came under the jurisdiction of special forest courts, rather than the local or feudal courts. Both lords and commoners reacted negatively to this forestation--the lords because of their loss of jurisdiction and hunting privileges; the commoners because of the loss of common lands. By the reign of John, this trend had become so pronounced that entire counties had been "forested".

Henry II had been a strong-willed king with the force of personality to impose his legal reforms on a reluctant England. The reforms were grudgingly accepted by most, since the courts quickly gained a reputation for fairness, but the great magnates grumbled at their loss of jurisdiction. Many of them could and did serve as justices or in the royal household, but it was increasingly clear that their independence was ebbing away. This would provide the backdrop for the reign of John and the first baronial war.

Richard I, Henry II's successor, continued his father's practices of extending royal authority, but was away on Crusade for most of his reign and so escaped the scrutiny which would fall upon his brother John. In many ways, John merely continued the trends set by his father and brother--but since he lacked the extraordinary force of character of Henry II or the heroic stature of Richard the Lionhearted, he is often seen as a "bad" king. In truth, he did nothing which had not been done before--but he lost the support of the great magnates which were crucial to the continuation of earlier policies by taking them perhaps too far. I have already mentioned the skyrocketing rate of forestation.John (like Richard before him) believed that the widow of one of his vassals was in a sense his to dispose of, and so often she would be married off to the richest suitor, at a handsome profit to the royal coffers. Heirs to baronial estates were often made to pay huge fines in order to gain possession, and the wardships of those who were underage were often sold to the highest bidder, or exploited by the Crown until the heir came of age--upon which the aforementioned huge fine was due.

On the political front, John seemed to believe that his own power was enough to run the country without the barons. After the loss of Normandy at the beginning of his reign, John became desperate to retain control of what Continental properties he still held, and lacking support of his barons, resorted to high taxes to raise the money for his campaigns. At the same time he had managed to get England placed under papal interdict and himself excommunicated by refusing to allow Stephen Langton, appointed archbishop of Canterbury by the Pope, into the kingdom. John simply used the opportunity to help himself to the wealth of the clergy, many of whom had left the country. In the face of increasing baronial unrest, however, John finally submitted to the papacy in 1213, making England officially a papal fief and gaining himself a powerful ally in the Pope.

As I have detailed in Part I, relations between King John and his barons had grown increasingly strained, as John attempted to raise money for his military expeditions through taxation and continued in controversy with the Church over his appointments to bishoprics. One of these men, Peter des Roches, Bishop of Winchester, was effectively ruler of England while John campaigned against Philip Augustus in France. When John returned in 1214, his dreams of regaining Normandy abandoned, he found the barons had grown even more hostile in the face of des Roches' de facto rule. Here is one of the first instances of what would become a familiar refrain in the thirteenth century--that the king gave too much power to foreign favourites; des Roches was not born on English soil, but hailed from the Touraine. The barons now feared that the bureaucracy and administrative power instituted by Henry II could be used--and abused--and thus could further erode their power in favour of the king's. The barons gradually sorted themselves into two parties--a group of moderates willing to negotiate, and another group who would eventually rise in revolt. John countered the move by taking the Cross of a Crusader--which brought him even further under Papal protection. The Great Charter was the result of mediation by the moderates between the rebel extremists and the King.

The crucial question would become whether the king was above the law--or, like all others in England, bound to it, even when he himself had made it? The issuance of the Charter confirmed that in England at least, the latter was to be true. John, however, probably saw the signing of the Charter at Runnymede in 1215 as only a stopgap measure, designed to buy time enough to gain back the momentum and crush the rebellious barons--especially those in the north, which had been particularly exploited by John in the matters of remarriage of widows, wardships, and often enormous fees required before a baronial heir could inherit property. Many of these particular abuses were forbidden outright by the Charter, as we shall see momentarily, as was the seizure of property or judgment without consultation, but the northern barons had no reason to trust John, and rightly so, since John promptly wrote to the Pope to get the Charter annulled. The Pope's favourable response and the excommunication of the rebel barons led to outright civil war; the barons employing French mercenaries to aid their cause. In the midst of this, John died on October 18, 1216.

It is difficult to say whether the Charter would have ever survived had John not died when he did. However, his death left a nine year old boy, Henry III, as King--and a group of loyalist moderate barons who had signed the Charter in control. These barons--led by William the Marshal, now the Earl of Pembroke and aided by the papal legate Guala and Peter des Roches, Bishop of Winchester, now took steps to ensure that a moderate position would be assumed. The Charter was reissued in 1216, many of its more radical passages excised, but the essential grant of liberties largely intact. After a royalist victory at Lincoln in 1217 and the excommunication of King Louis of France by a sympathetic Pope encouraged the French mercenaries to leave England, the regents made peace with the rebel barons, further fine-tuning the Charter and issuing a separate Charter of the Forests to deal with the complaints over the extension of forest law. What would eventually become the definitive version of the Charter was issued in 1225.

The text of Magna Carta is available elsewhere. I would draw your attention to some of its salient chapters:

--Articles 2-6 were designed to remedy the abuses of wardship and to end the high fines demanded by past Kings in favour of the ancient set relief (or fee) of 100 for the barony of an earl or 100s for a knight's fee. Guardians of wards were bound to maintain the property of the ward and not to destroy or exploit it, and marriages were not to be contracted without the consent of the family of the ward.
--Articles 7-8, similarly, were designed to stop the pressure applied to a widow to remarry (which usually took the form of refusing to settle her dower--the portion of her husband's property, usually 1/3, of which she was granted use until her death.
---Article 12 restricted the causes for which scutage could be levied "without common counsel" of the realm (ransom of his person, the knighting of his eldest son or the first marriage of his eldest daughter); this was directed at John's excessive taxation for his campaigns on the Continent. Article 14 continues this by naming who would be summoned to obtain counsel--archbishops, bishops, abbots, earls, and greater barons. Article 15, interestingly enough, places the same restrictions on obtaining aid--ransom, the knighting of the eldest son or the first marriage of the eldest daughter-- on all others in England, thus ensuring that the King was not placed under more restriction than other nobles.
Continuing this trend, article 52 establishes a council of 25 barons to judge in matters of disputed land claims; the role of the council as a distraint upon the King is further explained in article 61 (although it is clear here that the council is truly only empowered to act in the dispute between John and the barons and is not given further jurisdiction). These three articles, naming councils of greater nobles to approve certain matters and to act as a check against extension of royal power beyond that stipulated elsewhere in the Charter and in written law, is often seen as the seed from which the institution of Parliament would eventually grow under Edward I. However, it is important to note that Magna Carta did not result in the establishment of permanent councils of barons; these councils remained largely arbitrary through the reign of Henry III and were one of the issues in the baronial revolt of 1258-65.
--Article 13 confirmed the liberties of London (which had sided with the rebels) along with those of other cities and towns. These liberties, of course, placed restrictions on royal power within cities and towns and allowed city and town officials considerable jurisdiction within their own walls.
--Articles 17-32 all concern property law. 17-19 set out standards for courts of common pleas and assizes, while 20 set limits on fines and 21 ensured that earls and barons could only be judged and have fines assessed by their peers. Most of the rest ensured that property could not be arbitrarily seized. Once again, these addressed many specific abuses of John.
--What is often called the "meat" of the charter is contained in Articles 38-40: Article 38 forbid trial by unsupported allegation, without credible witnesses; article 39 forbid imprisonment, disseisment, outlawry, or exile without judgment by one's peers or by the "law of the land". Article 40 provided that for no person would justice be sold or delayed. These three provisions, along with those concerning land tenure, probably had more direct effect on the average Englishman than did the entire rest of the charter. (It is, however, to be noted that these provisions still applied only to "free" men.) These three articles continued the trend towards standardization of legal procedure that I noted last week and would have long-term effects on the fair and universal application of royal justice. Article 45 is related to these, in that it ensured that judges and others with judicial jurisdiction should actually know the laws; this probably served to continue the trend towards a professional judiciary. Articles 41 and 42 allowed for the freedom of merchants to travel without excessive taxation.
--Articles 44, 47, and 48 "rolled back the clock" on forestation of lands, removing all which had been forested by John and calling inquiries into abuses of forest law. They would later be supplemented by the Charter of the Forest of 1217, which would further ensure that forests, too, would be subject to standardized laws and courts.
--Articles 50 and 51 provided for the dismissal of some of the king's "foreign favourites", along with the removal of foreign mercenaries--very clearly an article targeted directly at John. Articles 51-53 likewise address specifically Welsh and Scottish grievances against John.
Finally, article 60 binds all overlords to extend the same liberties to their vassals as the King has extended to them. Being essentially a feudal contract, the Charter was to be observed by all parties if it was to work.

As I think you can see, much of the charter is concerned with the relief of very specific grievances against King John, although many of the articles had a long-term significance likely not foreseen by either John or the barons. Although the council of barons stipulated in the charter did not actually coalesce into a permanent council, its inclusion in the charter ensured that in the future, kings who attempted to rule arbitrarily would be called into question, as happened in the second baronial revolt of 1258-65--which likewise resulted in a royalist victory, but also in a further evolution of these principles and the beginnings of the extension of privilege of consultation beyond barons to simple knights. These people were regularly summoned after the royalist victory in 1265 until Henry's death in 1272 to advise on important matters of state, mostly concerning the settlements of property claims of the families of the rebels. Edward I began the practice of summoning these people twice yearly at what was now being called "parliament" to deal with major issues such as taxation and foreign treaties, clearly recognizing the importance of cultivating the support of the barons in order to accomplish his own objectives. Magna Carta did not create Parliament--but it did make it possible.