2. Magna Carta 1215: its social and political context
The year 2015 was the 800th anniversary of Magna Carta. It was on 15 June 1215 that King John, in the meadow of Runnymede beside the Thames between Windsor and Staines, authorized the writing out and sealing of the document which was to become known as Magna Carta. Runnymede remains an atmospheric place and it is not difficult to imagine the scene during those tense days in June 1215 when the Charter was being negotiated; the great pavilion of the king, like some circus top, towering over the smaller tents of barons and knights stretching out across the meadow.1 Today the great jets taking off from London Heathrow airport come up over Runnymede and then turn to fly down its whole length before vanishing into the distance. It is as though they are taking Magna Carta round the world, and the Charter has indeed become one of the most famous documents in world constitutional history.
Magna Carta is 3,550 words long written in Latin, the English translation of the Latin Magna Carta being Great Charter. Much of the Charter, even in a modern translation, can seem remote and archaic. It abounds in terms like wainage, amercement, socage and distraint.2 Some of its chapters seem of minor importance. One calls for the removal of fish weirs from the rivers Thames and Medway. Yet there are other chapters which still have a very clear contemporary relevance. Under chapter 12, the king is not to levy taxation without the common consent of the kingdom. Under chapter 39, he cannot arrest people or seize their property without judgement of their peers or by the law of the land. Under chapter 40, he is not to deny, delay or sell justice.3 In these ways, the Charter asserted a fundamental principle: that of the rule of law. The king was beneath the law, the law the Charter itself was making. He could no longer treat his subjects in an arbitrary fashion. Chapters of Magna Carta are still on the statute book of the United Kingdom today.4 It still features in current political debate. The heading of a leader in The Guardian newspaper opposing the ninety-day detention period for suspected terrorists was ‘Protecting Magna Carta’.5 In 2015 chapter 40, promising that justice should not be sold, was cited by those opposing the government’s changes to legal aid.
Figure 2.1. The last part of the copy of Magna Carta 1225 in the Cerne Abbey cartulary (Cambridge University Library Ll.1.10). 1225 was the first time Magna Carta was given a full witness list and the scribe at Cerne clearly recognised its importance in testifying to the way that Charter was now accepted by the good and great of the land. Photograph: David Carpenter.
In 1215 there was nothing new in the ideas behind the Charter. They were centuries old and part of general European heritage.6 Strengthened in the twelfth century by the study of Roman and canon law, they can be found in legislation and constitutions promulgated in Spain, Hungary and the south of France.7 It was in England, however, that they led to the most radical and detailed restrictions on the ruler. That was because in England the ruler was uniquely demanding and intrusive, thanks to the pressures of maintaining a continental empire which stretched from Normandy to the Pyrenees. By the time of John’s accession in 1199, there was already outcry at the level of the king’s financial demands. They were to become far worse. After John had lost Normandy and Anjou to the king of France in 1204, he spent ten years in England amassing the cash needed to recover his empire, in the process tripling his revenues.8 In 1214 the eventual campaign of recovery ended in total failure. John returned to England, his money spent, his prestige in tatters. The next year his baronial enemies rebelled and forced him to concede Magna Carta. They had other grievances. Although paying lip service to the principles of custom and consent, John’s rule had been lawless. He took hostages at will, deprived barons of lands and castles without legal process, and demanded large sums of money to assuage his rancour and recover his good will. In a chivalrous age, which expected noble captives to be treated with courtesy, he was cruel. He murdered both his nephew Arthur and the most famous noble woman of the age, Matilda de Briouze. She and her eldest son were starved to death in the dungeons of Corfe castle. As a contemporary writer put it, John was ‘brimful of evil qualities’.9
In 1215, John was, therefore, placed beneath the law, but the Magna Carta of 1215 was very far from giving equal treatment to all the king’s subjects. Socially it was a divided and divisive document, often reflecting the interests of a baronial elite a few hundred strong in a population of several million.10 Indeed the Charter did not merely reflect social divisions: in places it was designed to reinforce them. Having asserted that taxation required the common consent of the kingdom, the assembly giving that consent was to be attended primarily by earls, barons, bishops and abbots. There was no place for London and other towns, although the Londoners thought that there should be. There was no place for knights elected by and representing the counties. In other words, there was no equivalent of the house of commons.
At least, in the chapter on taxation, the good and great of the realm could be seen as protecting the rest of the king’s subjects from arbitrary exactions. But the king’s subjects were far from sharing equally in the Charter’s benefits. Indeed, the unfree villeins, who made up perhaps half the population, did not formally share in those benefits at all.11 The liberties in the Charter were granted not to ‘all the men’ of the kingdom, but to ‘all the free men’. The most famous chapter of Magna Carta, one of those still on the Statute Book, reads
No free man is to be arrested, or imprisoned, or dispossessed, or outlawed, or exiled, or in any way destroyed, nor will we go against him, nor will we send against him, save by the lawful judgement of his peers or by the law of the land.
It is, therefore, only ‘freemen’ who are preserved from arbitrary arrest and dispossession. As far as Magna Carta was concerned, both king and lords remained perfectly free to dispossess their unfree tenants at will. The threat of doing so was a vital weapon for control of the peasant workforce.
The next chapter, likewise still on the Statute Book, seemed more universal.
‘To no one will we deny, delay or sell right or justice’.
But this was less helpful to the unfree than it seemed. It was the law itself which laid down that villeins had no access to the king’s courts in any matter concerning their land and services. These were entirely for the lord to determine. As one law book put it, a villein when he wakes up in the morning does not know what services he must perform for his lord by night.12 The one chapter in the Charter which specifically protected the unfree was less than it seemed. Under chapter 20 fines imposed on villeins were to match the offence and be assessed by local men. During the negotiations at Runnymede, this chapter was redrafted to make it clear that the fines in question were those imposed by the king. In other words, they did not apply to fines imposed by lords. Lords were protecting their villeins from the king so they could take all the more themselves.
Magna Carta’s attitude to women was more nuanced. An important chapter protected widows from being forced into remarriage. Chapter 39 referred to the ‘free man’ but ‘man’ could be understood to mean ‘human being’.13 Indeed, the chapter probably owed something to the way John had ‘destroyed’ Matilda de Briouze. The Charter, however, also reflected the inequalities between men and women. It gives the names of thirty-four men, while three women are mentioned: John’s queen, and the sisters of King Alexander II of Scotland. Not one was named. This was but part and parcel of the limited role women played in public life. If a free woman secured judgement of peers under the terms of chapter 39, those peers would have been entirely male, for women did not sit on juries. Chapter 39 also forgot about women altogether when it spoke of outlawry, for rather than being outlawed women were ‘waived’, which meant left as a ‘waif’. This had the same effect. A waived woman could be killed on sight just like an outlawed man. But the distinction showed how subject women were to men. Women took no oath of allegiance to the king because in theory they were always under the protection of a man – father, husband or lord. They were, therefore, never ‘in law’ and so could not be ‘outlawed’, hence they were ‘waived’ instead. The only chapter (54) of the Charter where the word ‘woman’ (‘femina’) appears was designed to put women on a lower plane than men when making accusations of homicide. The implication was that women could not be trusted.
It is easy, therefore, to dismiss Magna Carta as a ‘feudal’ document, in which selfish baronial men looked after their own interests at the expense of the great bulk of the population. Such a view has been powerfully argued during the Charter’s 800th anniversary commemorations, yet it is misleading. Magna Carta had a much broader appeal. Chapter 1 protected the freedom of the church. Chapters 12 and 13 protected the liberties of London and other towns. Chapters 18 and 48 gave an important role to knights, elected in the county courts, in administering justice and reforming local government. The chapters facilitating litigation under the procedures of the common law benefited all free men (around half the population). Indeed these chapters actually cut across the interests of great barons since they undermined the jurisdictions of their own courts. The numerous chapters repressing the malpractices of the king’s local agents – his sheriffs, castellans and bailiffs – had considerable benefits even for the unfree. Magna Carta thus responded to the grievances of wide sections of society. Had it not done so it would never have survived.
In 1215 itself any survival appeared problematic. Within a few months of its promulgation the Charter seemed a failure without a future. John had got the pope to quash it. The barons had likewise abandoned it. They deposed John and elected another king in his place, none other than Prince Louis, the eldest son of the king of France. Louis had no brief for the Charter, and on his arrival in England in May 1216, said nothing about it. Magna Carta only survived because of John’s death in October 1216. The minority government of his son, the nine-year-old Henry III, in a desperate situation with Louis controlling over half the country, decided on a complete change of course. They accepted what John had rejected and Louis was ignoring. In November 1216, they issued, in the young king’s name, a new version of Magna Carta.14 Having won the war, in part because of this concession, they issued a second version of the Charter in November 1217 as part of the peace settlement. Then, in 1225, in order to secure a great tax, Henry III issued what became the final and definitive Magna Carta. It is chapters of Henry III’s Charter of 1225, not John’s of 1215, which remain on the Statute Book today. Indeed in the thirteenth century it was Henry’s Charter of 1225 which was called ‘Magna Carta’. John’s Charter of 1215 was more often called just ‘the Charter of Runnymede’. The name ‘Magna Carta’ itself had only appeared in 1218 to distinguish the ‘Great Charter’ from the physically smaller Charter dealing with the royal forest which Henry III issued alongside it. It was not until the seventeenth century that John’s Charter recovered its place centre stage and became called Magna Carta.
It is sometimes said that in its first century Magna Carta was little more than ‘guff’. It asserted high principles but had little practical effect. Recent research shows this view to be wrong. In the first place the Charter was far more than just a vague symbol of good government. Its detail was immensely well known. This had started in 1215 itself. It used to be thought that in 1215 originals of Magna Carta were sent to the sheriffs in charge of the counties, so there was one for every county. In fact, evidence is building up to show that the Charters were sent not to the sheriffs but to the bishops and their cathedrals. Two of the four surviving originals have been at cathedrals – Lincoln and Salisbury – throughout their life. An exciting discovery has shown that another of the originals (one of the two now in the British Library) was once at Canterbury Cathedral where it almost certainly went in 1215.15 In the great British Library Magna Carta exhibition it was described as the ‘Canterbury Magna Carta’. For John’s opponents the bishops and their cathedrals were far safer depositories of the Charter than the sheriffs and their castles; after all the sheriffs were the very people under attack in the Charter. Had Magna Carta been sent to them it would soon have disappeared into their castle furnaces. The bishops, on the other hand, with the first chapter of the Charter protecting the liberties of the church, had every reason to preserve and proclaim it.
The originals at the cathedrals were not the only source of knowledge of the 1215 Charter. New research has also shown that numerous unofficial copies were circulated round the country.16 Many of these were not of the final authorized text and derived instead from drafts produced during the negotiations at Runnymede. This spreading knowledge on the Charter helps explain its survival. From the start it was digging deep roots into the hearts and minds of the political community. That was why the minority government of Henry III took the crucial decision to revive it. Copies of the 1215 Charter continued to be made throughout the thirteenth century. Equally copied were the Charters of 1217 and 1225. Such copies are found in chronicles, cartularies and legal collections made by lawyers. The chapters were often numbered, described and analysed, with the differences between the different versions being pointed out.
By the end of the century, Magna Carta in its various forms was known in all strata of society. In 1300 it was proclaimed in English, the language of the general run of the population. Around the same time it was appealed to by the peasants of Bocking in Essex, later a centre of the peasants’ revolt.17 The Charter had also effected a profound change in the workings of monarchy. Stopping up many arbitrary sources of revenue, and insisting that general taxation required common consent, it had helped create the tax-based parliamentary state. It was a real watershed between lawless and lawful rule. It had established the base from which it would later go round the world.
_______________
1 The best contemporary description of the scene is in Radulphi de Coggeshal Chronicon Anglicanum, ed. J. Stevenson (Rolls Ser., 1875), p. 172. The chronicler Matthew Paris explained that ‘Runnymede’, an English word, meant ‘the meadow of counsel’. It was ‘a place where from ancient times meetings had taken place about the peace of the kingdom’ (Matthaei Parisiensis Historia Anglorum, ed. F. Madden (3 vols., Rolls Ser., 1866–9), ii. 153).
2 D. Carpenter, Magna Carta (Harmondsworth, 2015), pp. 461–70 has a glossary explaining the meaning of these and other contemporary terms. The classic work on the Charter remains J.C. Holt, Magna Carta (2nd edn., Cambridge, 1992).
3 Detailed commentaries on the chapters in the 1215 Magna Carta by Henry Summerson 17 may be found on the website of the Magna Carta project <http://www.magnacartaresearch.org> [accessed 22 March 2018].
4 For the surviving chapters and the repeal of others, see ‘Magna Carta repeals’: <http://www.legislation.gov.uk/aep/Edw1cc1929/25/9/contents> [accessed 22 March 2018].
5 The Guardian, 5 No. 2015 <http://www.theguardian.com/politics/2005/nov/05/terrorism.terrorism> [accessed 22 March 2018]. The later history of the Charter and its influence especially in America is splendidly illustrated in N. Vincent, Magna Carta: Origins and Legacy (Oxford, 2015).
6 For very similar ideas being expressed in the Carolingian period, see J. L. Nelson, ‘Bad kingship in the earlier middle ages’, Haskins Soc. Jo., viii (1999), 1–26.
7 See, e.g., R. Altamira, ‘Magna Carta and Spanish medieval jurisprudence’, in Magna Carta Commemoration Essays, ed. H. E. Malden (1917), pp. 227–43; T. N. Bisson, ‘An “Unknown Charter” for Catalonia (A.D. 1205)’, in his Medieval France and her Neighbours (1989), pp. 199–212; N. Vincent, ‘English liberties, Magna Carta (1215) and the Spanish connection’, in 1212–1214: El trienio que hizo a Europa, Acta de la XXXVII Semana de Estidios Medievales de Estella 19 al 23 de julio de 2010 (Pamplona, 2011), pp. 243–61.
8 Key works on John’s financial demands are J. C. Holt, The Northerners: a Study in the Reign of King John (Oxford, 1961), ch. 9, ‘The loss of Normandy and its consequences’; N. Barratt, ‘The revenue of King John’, Eng. Hist. Rev., cxi (1996), 835–55; and compare N. Barratt, ‘The English revenue of Richard I’, Eng. Hist. Rev., cxvi (2001), 635–56.
9 Carpenter, Magna Carta, pp. 79–80. There are three fine biographies of King John: W.L. Warren, King John (new edn., New Haven and London, 1997); S. Church, King John: England, Magna Carta and the Making of a Tyrant (2015) and M. Morris, King John: Treachery, Tyranny and the Road to Magna Carta (2015).
10 For this theme, see chapters 4 and 5 of Carpenter, Magna Carta.
11 For the law relating to villeins in this period, see P. R. Hyams, King, Lords and Peasants in Medieval England: the Common Law of Villeinage in the Twelfth and Thirteenth Centuries (Oxford, 1980), an absolutely groundbreaking book.
12 Bracton on the Laws and Customs of England, ed. G. E. Woodbine, translated with revisions and notes by S. E. Thorne (4 vols., Cambridge, Mass., 1968–77), ii. 89.
13 See The Treatise on the Laws and Customs of England commonly called Glanvill, ed. G. D. G. Hall (1965), p. 106, a reference I owe to John Gillingham.
14 For a catalogue of the new versions of the Charter with illustrations of the surviving originals, see Vincent, Magna Carta: Origins and Legacy, pp. 204–71.
15 Carpenter, Magna Carta, pp. 477–80. The hypothesis that the originals of the 1215 Charter were sent to cathedrals was first developed by I. W. Rowlands, ‘The text and distribution of the writ for the publication of Magna Carta, 1215’, Eng. Hist. Rev., cxxiv (2009), 1422–31.
16 See the section ‘Copies of Magna Carta’ on the website of the Magna Carta project <http://www.magnacartaresearch.org> [accessed 22 March 2018].
17 Carpenter, Magna Carta, pp. 435, 457–8.