TTME Magna Carta

Magna Carta has a reputation as one of the foundational documents in the development of the rights of the individual and in limiting he powers of monarchs. What does it actually say? And does it deserve its reputation?

Download Podcast - TTME Magna Carta (Right Click and select Save Link As)

 

What does Magna Carta actually say? 

Here below is a copy of my discussion about Magna Carta, produced many years ago. There’s also an excellent podcast on the topic produced by…ooh, the History of England, there’s a shock! It’s episode 59, or you can to the website post ‘Magna Carta and the death of a tyrant’.

Introduction

Magna Carta is basically a peace treaty. The barons who forced it on the king were not trying to create a new constitution – it was just that there were some things the king was doing that they needed to stop; it was a charter of liberties, not a charter of liberty; i.e. a charter that enumerated the rights of the aristocracy – and incidentally free men.

It was a treaty meant to regulate the custom and practice that had grown up around feudalism. The various traditional rights of the king had been ruthlessly exploited by King John’s father, Henry IInd, and brother, Richard Ist; but John had taken that exploitation still further. The trouble with custom was that it was not well enough defined; the Charter of Liberties of Henry I, for example, was reasonably generous on principle but gave no figures. So, the king was supposed to be fair about the ‘Relief’ he charged a man when taking over his inheritance on the death of his father – but didn’t name a figure. The baron’s put that right in this charter.

It was an unequal treaty at that – the king was forced to give up a lot more that the Barons. But then probably John had no intention of sticking by it anyway. As a peace treaty, it is therefore spectacularly unsuccessful, since it is immediately followed by war, and as a legal entity it is spectacularly unsuccessful in one sense – since it only lasts a few weeks.

Somehow, though, Magna Carta has become one of those touchstones of liberty that have been referred to down the ages. It is indeed highly relevant and constantly referred to during the 13th century, but by the end of the century has really become much less relevant. Parliament has started, and put more definition around many of its clauses. So for example, the famous clause 39 which talks about ‘lawful judgement of equals’, but actually doesn’t mention Trial by Jury at all, is officially superseded by the official the right to trial by jury.

Throughout the 15th and 16th century we don’t hear much about Magna Carta, and actually the interpretation of the Barons revolt becomes more negative and disapproving. In the reign of Elizabeth, the misinterpretation of Magna Carta begins. Francis Bacon and others start to talk about it as a statement of liberty and fundamental law; and then we get Edward Coke, the 17th century jurist. He saw the Charter as a statement of liberty against the power of the king, claimed that it gave liberties to all men not just free men, and used it to underpin the Petition of Rights in 1628 in the struggle against King Charles. In arguing against the king’s claim to absolute supremacy he argued famously that law was above the king, saying “Magna Carta is such a fellow, that he will have no ‘sovereign’.

As ever, there is reaction to this high water mark. Hobbes and Locke believed in a natural law; and this meant they thought Magna Carta a bit irrelevant. This is because Magna Carta stands for the evolution of law based on custom and practice and precedent – and they were eager to prove that there are a set of rights more fundamental than that. None the less, MC is clearly hugely significant as a rallying call during the civil war, however distorted the view of what it actually says. Free Born John, or John Lillbourne of the Levellers claimed that “the liberty of the whole English nation” was in the Magna Carta. Magna Carta also influences several royal charters establishing English colonies in America; such as Massachusetts in 1629, Maryland in 1632, Maine in 1639, Connecticut in 1662, Rhode Island in 1663.  The Massachusetts Body of Liberties (1641), the Virginia Bill of Rights (1776), the Fifth and 14th Amendments to the U.S. Constitution all quoted its language.

By the 19th century, the interpretation by Whig historians as a fundamental step of the inevitable march of the English towards constitutional monarchy reached it’s apogee in William Stubbs and his ‘Constitutional History of England’. Since then the focus has been much more on what the Charter actually says, and what its real significance is. Historians like Jenks, Maitland and Pollard in the 20th Century place the Charter firmly in context. But there is the shared, public history, the memorable history that is embodied by Stellar and Yeatman’s ‘1066 and all that’ and in this English shared folk history I suspect that Magna Carta reigns supreme as a symbol of the development of liberty. So to quote from them and given them the last word:

‘Magna Charter was therefore the chief cause of Democracy in England and thus a Good Thing for everyone (except the Common People)’.

Please note: 

  • *means that the clause was withdrawn from later re-issues of the charter
  • @means that the clause is still valid under later charters, but with some amendment
  • Clauses 1, 13 and 39 are still on the statute books of English law.

 

The Great Charter of Liberties of King John (Magna Carta) 1215

John, by the grace of God King of England, Lord of Ireland, Duke of Normandy and Aquitaine, and Count of Anjou, to his archbishops, bishops, abbots, earls, barons, justices, foresters, sheriffs, stewards, servants, and to all his officials and loyal subjects, Greeting.

Know that before God, for the health of our soul and those of our ancestors and heirs, to the honour of God, the exaltation of the holy Church, and the better ordering of our kingdom, at the advice of our reverend fathers Stephen, archbishop of Canterbury, primate of all England, and cardinal of the holy Roman Church, Henry archbishop of Dublin, William bishop of London, Peter bishop of Winchester, Jocelin bishop of Bath and Glastonbury, Hugh bishop of Lincoln, Walter Bishop of Worcester, William bishop of Coventry, Benedict bishop of Rochester, Master Pandulf subdeacon and member of the papal household, Brother Aymeric master of the knighthood of the Temple in England, William Marshal earl of Pembroke, William earl of Salisbury, William earl of Warren, William earl of Arundel, Alan de Galloway constable of Scotland, Warin Fitz Gerald, Peter Fitz Herbert, Hubert de Burgh seneschal of Poitou, Hugh de Neville, Matthew Fitz Herbert, Thomas Basset, Alan Basset, Philip Daubeny, Robert de Roppeley, John Marshal, John Fitz Hugh, and other loyal subjects:

[A few of the dramatis personae:

  • Stephen Langton, the Archbishop of Canterbury, had been the object of the quarrel between John and Pope Innocent III and the resulting interdict. His attitude seems to have one of sympathy for the baronial cause, while remaining in the king’s camp. Subsequently he was to refuse to excommunicate the barons on the Pope’s order
  • William earl of Pembroke is the famous William the Marshal, the perfect knight, who despite being poorly treated by John earlier in his reign stuck by his king throughout the struggle
  • John Marshal is his son, and had fought for most of the civil war against his father on the baronial side. Before the end of the conflict, he was to return to the royal cause.
  • William earl of Salisbury is William Longsword, the king’s half brother. He had been staunchly loyal, though with a brief wobble after Louis landed in London and it looked as though John’s cause was finished.]

(1)        @First that we have granted to God, and by this present charter have confirmed for us and our heirs in perpetuity, that the English Church shall be free, and shall have its rights undiminished, and its liberties unimpaired. That we wish this so to be observed, appears from the fact that of our own free will, before the outbreak of the present dispute between us and our barons, we granted and confirmed by charter the freedom of the Church’s elections – a right reckoned to be of the greatest necessity and importance to it – and caused this to be confirmed by Pope Innocent III. This freedom we shall observe ourselves, and desire to be observed in good faith by our heirs in perpetuity.

[This clause is one of 3 from the 1215 charter that are still on the English statute books.

The clause echoes the struggles of the late 11th and 12th century by the Popes to free the church from secular control, that had its height in the struggles between the Holy Roman Emperors and the Popes. Innocent was made of more pliable stuff than Popes like Gregory VII. He affirmed the principle of free elections as quoted in this clause, but in practice accepted that the king would be present at elections (and therefore most certainly exercising a usually decisive influence) and that the person elected had to be acceptable to him.

Pope Innocent III by this time was a staunch supporter of John; John had made England a vassal state of the Papacy, and had also taken the cross and promised to go on Crusade. Innocent was desperate to make that happen, and therefore intensely anti-baronial. As soon as he heard of the Charter he excommunicated the barons and forbade John to implement it – as if John needed any encouragement.]

To all free men of our kingdom we have also granted, for us and our heirs for ever, all the liberties written out below, to have and to keep for them and their heirs, of us and our heirs.

(2)        If any earl, baron, or other person that holds lands directly of the Crown, for military service, shall die, and at his death his heir shall be of full age and owe a relief, the heir shall have his inheritance on payment of the ancient scale of relief. That is to say, the heir or heirs of an earl shall pay £100 for the entire earl’s barony, the heir or heirs of a knight 100s (£5). At most for the entire knight’s fee, and any man that owes less shall pay less, in accordance with the ancient usage of fees

[Knights fee (or fief) – The knight’s fee is the parcel of land given to a knight for which he owes military service. Fees were not always sufficient to provide one knight – it might be that several knights had to group together to provide the required knight. There was no set amount of acreage to provide a knight – since it would depend on the quality of the land.

Relief – In law, there was only one landowner in England at this time – the king. Everyone else held land directly or indirectly from him. Everyone accepted that it was the king’s right to charge a ‘relief’ of all heirs before they could formally inherit. Even in Anglo Saxon times a lord had to pay a ‘heriot’, a kind of death duty, in order to inherit. The problem was that until this charter there was no set fee. Henry II and Richard had by and large played the game and made sure what they charged was sensible; John charged vast amounts. Average baronial income was about 300 marks a year at the time, a mark being 2/3rds of £1. John’s average relief was about 600 marks. John de Lacy was charged 7,000 marks, William de Stuteville was charged 10,000 marks. These kind of figures meant that they could not be paid back, the lord therefore owed John money, and were effectively at his mercy should he call the debt in.]

(3)        But if the heir of such a person is under age and a ward, when he comes of age he shall have his inheritance without relief or fine.

[The idea here is that an heir should not be penalised twice. i.e. whoever held the wardship of a minor would be able to take the revenues from their land while they were a minor. It therefore seemed a bit much to also charge the minor a relief when they achieved their majority. Interestingly, Eustace de Vesci, one of the prime movers in the rebellion, had been charged a relief in 1190 of 1,300 marks after his lands that been in the custody of the crown for 8 years. In the re-issue of the charter in 1217, it was further specified that majority occurred at the age of 21.]

(4)        The guardian of the land of an heir who is under age shall take from it only reasonable revenues, customary dues, and feudal services. He shall do this without destruction or damage to men or property. If we have given the guardianship of the land to a sheriff, or to any person answerable to us for the revenues, and he commits destruction or damage, we will exact compensation from him, and the land shall be entrusted to two worthy and prudent men of the same fee, who shall be answerable to us for the revenues, or to the person to whom we have assigned them. If we have given or sold to anyone the guardianship of such land, and he causes destruction or damage, he shall lose the guardianship of it, and it shall be handed over to two worthy and prudent men of the same fee, who shall be similarly answerable to us.

[As is the case for a number of the clauses, this is not quite as simple as it looks. Because this affects the barons’ own rights as well as the king’s. They were often the people who were able to exploit wardships. The barons have often been presented as a group of thugs acting in their own class interest; but there are plenty of examples of where they have had to give something up for the greater gain.]

(5)        For so long as a guardian has guardianship of such land, he shall maintain the houses, parks, fish preserves, ponds, mills, and everything else pertaining to it, from the revenues of the land itself. When the heir comes of age, he shall restore the whole land to him, stocked with plough teams and such implements of husbandry as the season demands and the revenues from the land can reasonably bear.

(6)        Heirs may be given in marriage, but not to someone of lower social standing. Before a marriage takes place, it shall be made known to the heir’s next-of-kin.

[It looks as though at one stage the barons had intended to lay down more stringent rules – such as requiring the king to take the advice of the ward’s relatives. But in the end simplicity won out. The clause also reflects the rigidity of the medieval social structure – those who fight, those who pray and those who work, and moving between them was not a happy thought. Within each ‘estate’ there were also clear distinctions to be made – between a knight and a baron for example. The barons were not social revolutionaries.]

(7)        At her husband’s death, a widow may have her marriage portion and inheritance at once and without trouble. She shall pay nothing for her dower, marriage portion, or any inheritance that she and her husband held jointly on the day of his death. She may remain in her husband’s house for forty days after his death, and within this period her dower shall be assigned to her.

(8)        No widow shall be compelled to marry, so long as she wishes to remain without a husband. But she must give security that she will not marry without royal consent, if she holds her lands of the Crown, or without the consent of whatever other lord she may hold them of.

[Noble women had long been used to buying the right to decide who they married; the widow of one Ralph of Cornhill offered 200 marks and 3 palfreys (horses for riding and light work) that she should not be married to Godfrey of Louvain, and that she could marry whoever she chose to, for example. This clause was not therefore introducing a novel idea. But, this clause like many others moves this from an individual privilege that you buy, to communal right, and that’s a big step. Also like so many others, it will also seriously restrict the king’s freedom of action and his revenue earning powers.]

(9)        Neither we nor our officials will seize any land or rent in payment of a debt, so long as the debtor has movable goods sufficient to discharge the debt. A debtor’s sureties shall not be distrained upon so long as the debtor himself can discharge his debt. If, for lack of means, the debtor is unable to discharge his debt, his sureties shall be answerable for it. If they so desire, they may have the debtor’s lands and rents until they have received satisfaction for the debt that they paid for him, unless the debtor can show that he has settled his obligations to them.

(10)     *If anyone who has borrowed a sum of money from Jews dies before the debt has been repaid, his heir shall pay no interest on the debt for so long as he remains under age, irrespective of whom he holds his lands. If such a debt falls into the hands of the Crown, it will take nothing except the principal sum specified in the bond.

(11)     *If a man dies owing money to Jews, his wife may have her dower and pay nothing towards the debt from it. If he leaves children that are under age, their needs may also be provided for on a scale appropriate to the size of his holding of lands. The debt is to be paid out of the residue, reserving the service due to his feudal lords. Debts owed to persons other than Jews are to be dealt with similarly.

[Clauses 9 – 11 deal with debt, and really don’t say very much. There were some real issues that needed to be dealt with; for example, barons or even monasteries would buy out the bonds held by Jews, and then pursue them with hideous vigour with the Debtor, in the hope of taking their land. But probably the barons felt that clause 9 was enough to regulate the behaviour of people who had willingly taken out debts; that they should not be messing with a relatively trivial crown procedure, and because these barons themselves may have been buying up debt.

Jews tended to work in usury since Christians were forbidden. Under Richard, the Crown had begun to take over the debts of Jews when they died. Jews were also directly under the protection of the king. In return, kings milked them for ‘tallages’ (taxes) at regular intervals.]

(12)     No scutage or aid may be levied in our kingdom without its general consent, unless it is for the ransom of our person, to make our eldest son a knight, and (once) to marry our eldest daughter. For these purposes only a reasonable aid may be levied. Aids from the city of London are to be treated similarly.

[Scutage, or shield tax, was the money required to be paid by a knight if he wanted to avoid doing the military service due for is land. Aids (auxilium) were an accepted feudal right of the king. It was pretty accepted that an aid needed consent, and it looks here that here the barons were simply making sure kings didn’t extend the number of aids they could gather, but the real innovation is in the attempt to make scutage also subject to consent – this had never been the case before. The clause would not survive for long.]

(13)     The city of London shall enjoy all its ancient liberties and free customs, both by land and by water. We also will and grant that all other cities, boroughs, towns, and ports shall enjoy all their liberties and free customs.

[This is the second clause which is still on the statute books. London was important to the barons, and their victory had been secured with its support; before long, after John had ravaged the east and north of England, it would be their main bastion. The inclusion of the rights of merchants, though, is showing unusual recognition.]

(14)     *To obtain the general consent of the realm for the assessment of an aid – except in the three cases specified above – or a scutage, we will cause the archbishops, bishops, abbots, earls, and greater barons to be summoned individually by letter. To those who hold lands directly of us we will cause a general summons to be issued, through the sheriffs and other officials, to come together on a fixed day (of which at least forty days notice shall be given) and at a fixed place. In all letters of summons, the cause of the summons will be stated. When a summons has been issued, the business appointed for the day shall go forward in accordance with the resolution of those present, even if not all those who were summoned have appeared.

[Together with c. 12, is this the embodiment of the principle of no taxation without representation? The ‘greater barons were, in fact, pretty conservative, and were as concerned as the king to maintain their feudal powers and rights; so the conclusion of lords other than the ‘greater barons’ was progressive, probably on the King’s part.]

(15)     *In future we will allow no one to levy an aid from his free men, except to ransom his person, to make his eldest son a knight, and (once) to marry his eldest daughter. For these purposes only a reasonable aid may be levied.

[Magna Carta is exceptional among European charters of the period in the breadth of its inclusiveness. This clause could be seen as the barons accepting that if the king had to live by rules then they should also; I always imagine John rather nastily making this (perfectly reasonable) point, and watching the greater barons squirm.]

(16)     No man shall be forced to perform more service for a knight’s fee, or other free holding of land, than is due from it.

[Magna Carta is often so imprecise as to be useless, and here is one of these clauses. Obviously there is no definition of what service is due from a fee. In addition, it does not cover foreign service. This had been one of the key points of dispute between the barons and the king. In the ‘Articles of the Barons’, a document that seems to have been a previous draft of MC leading up to a negotiation, the barons had specified that foreign service was only required  in Normandy and Brittany – not Poitou, which is where John wanted to fight. There was little grounds for this as it happens – nowhere had there previously been any idea that foreign service was excluded. But here anyway it is completely dropped.]

(17)     Ordinary lawsuits shall not follow the royal court around, but shall be held in a fixed place.

[The accepted practice under Henry, Richard and John’s early reign had been for the royal courts of justice to split into to – one which followed the king around as he travelled (incessantly) around the country, and the other which stayed in Westminster – the Bench. With the Interdict and the withdrawal of many of the clerical judges John would have used, he took the (perfectly reasonable) decision to stop the split. But of course that could be very inconvenient for litigants; and in addition having a permanent centre of common law led to continuity and greater regularity. The clause, like others, shows that the barons want more royal justice, not less. They just want it to be good, reliable justice.] 

(18)     Inquests of novel disseisin, mort d’ancestor, and darrein presentment shall be taken only in their proper county court. We ourselves, or in our absence abroad our chief justiciar, will send two justices to each county four times a year, and these justices, with four knights of the county elected by the county itself, shall hold the assizes in the county court, on the day and in the place where the court meets.

[This clause again demonstrates that the barons are looking for more rather than less royal justice, but looking to regularise it and adjust it in favour of the litigant. The processes described were established by Henry II, and were legal processes started by royal writs, available relatively cheaply by application to the king. All three were established in 1176, and abolished in 1833.

  • Novel disseisin (‘recent dispossession’) –  All litigants needed to do was to prove that dispossession had recently taken place; if they could prove that, they’d get the land back and the debate about who really owned the land would be carried out later.
  • Mort d’ancestor (‘death of an ancestor’) – where the plaintiff claimed that the defendant had entered into an inheritance that rightfully belonged to the plaintiff.
  • Darrein presentment (‘last presentation’) – was a process to find out who had last appointed a priest to a particular church. The right to make a church appointment was called an advowson.

A couple of other points; the amount of justice on offer was probably in fact more than the king could organise. And, note the importance of the role of the knight, who you might think of as the ‘gentry’. Since the time of Henry II their role in the governance of the country was steadily growing, and would continue to grow. They were a vital cog in the wheel of the body politic.]

(19)     If any assizes cannot be taken on the day of the county court, as many knights and freeholders shall afterwards remain behind, of those who have attended the court, as will suffice for the administration of justice, having regard to the volume of business to be done.

[‘assize’ means the session of a court]

(20)     For a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood. In the same way, a merchant shall be spared his merchandise, and a husbandman the implements of his husbandry, if they fall upon the mercy of a royal court. None of these fines shall be imposed except by the assessment on oath of reputable men of the neighbourhood.

[This clause is an appeal to customary practice; the Charter of Liberties of Henry I had said that a free man should ‘make amends according to the extent of the crime as he would have done before the time of my father in the time of my other predecessors’. During the reign of John, heavier and heavier fines had been levied, this clause attempts to put that right.]

(21)     Earls and barons shall be fined only by their equals, and in proportion to the gravity of their offence.

[This clause on the other hand is an innovation. The barons were amerced at the Exchequer rather than the court; and they had suffered increasingly heavy fines, especially for offences against the Forest Law. So they tried to put it right through this approach, of trying to take the judgement away from the King. Although the clause remains in later issues of the charter, it doesn’t work. The king gets round it by defining the king as a peer of the barons.]

(22)     A fine imposed upon the lay property of a clerk in holy orders shall be assessed upon the same principles, without reference to the value of his ecclesiastical benefice.

[Simply applying the rules of clause 20 to the clergy]

(23)     No town or person shall be forced to build bridges over rivers except those with an ancient obligation to do so.

(24)     No sheriff, constable, coroners, or other royal officials are to hold lawsuits that should be held by the royal justices.

[The job of Coroner is a relatively new one, formally set up in 1194. The role of the Coroner was to protect the financial rights of the crown in court cases; although the Sheriff was the royal official, he might have an interest in the case at hand. But he is not a justice, and should not be holding the court]

(25)     *Every shire, hundred, wapentake, and tithing shall remain at its ancient farm, without increase, except the royal demesne manors.

[The hundred is the ancient administrative division of the Anglo Saxon shires; the wapentake is the same thing, but in the Danelaw, where the inhabitants were of Scandinavian descent.

The ‘farm’ reflects the process by which Sheriffs collected revenue for the king. Rather than have a process by which accurate accounts were taken and the Sheriff paid for his job, the Sheriffs were given a figure they had to pay to the King for the privilege of being the Sheriff – this was called the farm. If they were able to actually collect more than this figure, they could pocket the difference – so that’s how they were effectively paid. The trouble was it tended to make the Sheriffs rapacious – the harder they squeezed, the more they got. So when John increased their farms, the Sheriffs squeezed even harder. This is an attempt to put that right.

There are a number of clauses that underline a key feature of Magna Carta – the fact that it was made in the interests of the whole community of the realm, not for a collection of individuals. This is one of them – this is law made on behalf of the whole hundred.

The clause also excludes the ‘royal desmesne’ – i.e. the private lands of the king, not given out to a tenant. The barons had no desire to regulate the personal affairs of the king.]

(26)     If at the death of a man who holds a lay fee of the Crown, a sheriff or royal official produces royal letters patent of summons for a debt due to the Crown, it shall be lawful for them to seize and list movable goods found in the lay fee of the dead man to the value of the debt, as assessed by worthy men. Nothing shall be removed until the whole debt is paid, when the residue shall be given over to the executors to carry out the dead man s will. If no debt is due to the Crown, all the movable goods shall be regarded as the property of the dead man, except the reasonable shares of his wife and children.

(27)     *If a free man dies intestate, his movable goods are to be distributed by his next-of-kin and friends, under the supervision of the Church. The rights of his debtors are to be preserved.

(28)     No constable or other royal official shall take corn or other movable goods from any man without immediate payment, unless the seller voluntarily offers postponement of this.

(29)     No constable may compel a knight to pay money for castle-guard if the knight is willing to undertake the guard in person, or with reasonable excuse to supply some other fit man to do it. A knight taken or sent on military service shall be excused from castle-guard for the period of this service.

(30)     No sheriff, royal official, or other person shall take horses or carts for transport from any free man, without his consent.

(31)     Neither we nor any royal official will take wood for our castle, or for any other purpose, without the consent of the owner.

(32)     We will not keep the lands of people convicted of felony in our hand for longer than a year and a day, after which they shall be returned to the lords of the fees concerned.

(33)     All fish-weirs shall be removed from the Thames, the Medway, and throughout the whole of England, except on the sea coast.

[This is a repetition of the privileges granted to London in 1196 and 1199 – the principle of medieval privileges was that you repeatedly made sure they were re-confirmed, otherwise to stood to lose them. The idea behind this was to ensure free navigation and therefore access to trade for merchants.]

(34)     The writ called praecipe shall not in future be issued to anyone in respect of any holding of land, if a free man could thereby be deprived of the right of trial in his own lord’s court.

[The writ of praecipe was a process by which a plaintiff could try to get a case heard in a royal court rather than their local lord’s court. But it wasn’t a big issue. The Angevins did not in practice try to remove the feudal rights to justice of the manorial courts; and nor did the barons try to stop the operation of royal justice]

(35)     There shall be standard measures of wine, ale, and corn (the London quarter), throughout the kingdom. There shall also be a standard width of dyed cloth, russett, and haberject, namely two ells within the selvedges. Weights are to be standardised similarly.

[The attempt to establish standard weights and measures seemed entirely sensible, but soon ran up against the medieval love of special privileges – towns bought the right to stick with their old measures which sort of destroyed the point of doing it.

  • russett is a coarse cloth made of wool; when the 14th century sumptuary laws come in, poor people are required to wear russet.
  • Haberject – a cloth of mixed colour, often worn by monks
  • Ell – a unit of measurement – a cubit, i.e. length of an arm from the tip of the middle figure to the elbow. It came later to be about 45 inches.
  • Selvedge – the unfinished edge of fabric]

(36)     In future nothing shall be paid or accepted for the issue of a writ of inquisition of life or limbs. It shall be given gratis, and not refused.

(37)     If a man holds land of the Crown by fee-farm, socage, or burgage, and also holds land of someone else for knight’s service, we will not have guardianship of his heir, nor of the land that belongs to the other person’s fee, by virtue of the fee-farm, socage, or burgage, unless the fee-farm owes knight’s service. We will not have the guardianship of a man’s heir, or of land that he holds of someone else, by reason of any small property that he may hold of the Crown for a service of knives, arrows, or the like.

[These are types of lesser tenures of land; the clause is disbarring the king from exercising rights of wardship over these lesser tenures, which may be held of other lords.

  • Socage is type of land tenure whereby a farmer holds land in return for rent or produce
  • Burgage is land tenure in towns

Neither are mentioned here, but two other types of land tenure are:

  • Serjeantry – there the landholder would have to perform some kind of service, like castle guard
  • Frankalmoin – where the landholder would perform some religious service]

(38)     In future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it.

(39)     @No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.

[Probably the most famous of all the clauses in Magna Carta, and one that still survives on the Statute books. It’s been argued, particularly in the 17th century, that the clause leads to the writ of habeas corpus, and to the right of trial jury; generally, that’s thought now to be too large a claim, and that its great achievement is that it asserts the principle that judgement should precede execution, the principle of the rule of law. It’s far too imprecise to end the debate – what for example, exactly was the law of the land? Note that the phrase is ‘by lawful judgement of his equals OR by the law of the land’ – this gave considerable rule for manoeuvre to John’s son and grandson. But it created a basis for future argument, through which these issues would be defined over time. And note the use of ‘free man’; once again, Magna Carta was not simply a document stating the rights of the aristocracy.]

(40)     @To no one will we sell, to no one deny or delay right or justice.

[The trouble was that justice was an important source of income for kings. By and large most of the English kings took a genuine interest in justice, but there was no getting away from its value as a source of revenue. So John would accept offers from lords who wanted to make sure he took their view of what justice should be. Not that this always worked out; William de Mowbray, for example paid 2,000 marks to John to help him se sense in a case affecting him. John took the money – and then let the case go against Mowbray. But generally, the money did its job. Against this, there is this clause, a general statement of principle. The complaints against kings in this regard don’t go away – the revenue for justice was too valuable – but the worst features of John’s reign are rarely repeated.]

(41)     All merchants may enter or leave England unharmed and without fear, and may stay or travel within it, by land or water, for purposes of trade, free from all illegal exactions, in accordance with ancient and lawful customs. This, however, does not apply in time of war to merchants from a country that is at war with us. Any such merchants found in our country at the outbreak of war shall be detained without injury to their persons or property, until we or our chief justice have discovered how our own merchants are being treated in the country at war with us. If our own merchants are safe they shall be safe too.

(42)     *In future it shall be lawful for any man to leave and return to our kingdom unharmed and without fear, by land or water, preserving his allegiance to us, except in time of war, for some short period, for the common benefit of the realm. People that have been imprisoned or outlawed in accordance with the law of the land, people from a country that is at war with us, and merchants – who shall be dealt with as stated above – are excepted from this provision.

[Throughout the charter there is evidence that the barons had been influenced by the communal movement on the continent, and more specifically the commune established in London in 1191. This is reflected in the references to the community of the realm, and the more obviously in the confirmation of borough privileges, and here in c.41 the protection of trade; just like clause 33, there is a concern to prevent restrictions on free access to trade. C. 41 here obviously impacted on trade but had broader implications. For this reason it was withheld from the re-issue of the charter in 1216 after John’s death for further discussion.]

(43)     If a man holds lands of any escheat such as the honour of Wallingford, Nottingham, Boulogne, Lancaster, or of other escheats in our hand that are baronies, at his death his heir shall give us only the relief and service that he would have made to the baron, had the barony been in the baron’s hand. We will hold the escheat in the same manner as the baron held it.

[‘Escheat’ is where land is taken back into the hand of the immediate feudal superior. This could be that the landholder had died without an heir; or it could be that the land had been taken away from the holder by some legal process.

An ‘Honour’ is the word used for the larger collections of lands and manors held by the greater barons.

The clause therefore simply makes sure that the king, or indeed an baron, would not tae advantage of the situation to demand excessive or innovative services from the new tenant of the escheated land.]

(44)     People who live outside the forest need not in future appear before the royal justices of the forest in answer to general summonses, unless they are actually involved in proceedings or are sureties for someone who has been seized for a forest offence.

[There are a number of clauses that related to the royal forests.  Many of these clauses were removed from the charter when it was re-issued, because a separate, smaller Forest Charter was issued – the comparison with which led to this being called the Great Charter.

Royal Forests were an innovation from the Normans that had never sat well with the Anglo Saxon tradition. In fact, they sat well with no one except the king. The forest was not necessarily woods as we’d imagine them today; they were areas preserved for royal hunting grounds. The rules therefore protected the plant life and animal life, with blood curdling penalties. They were unpopular because it was easy to break these rules unaware; and because they placed great restrictions on the economic life in the area.

There is a constant struggle to reduce royal forests. When kings were weak they had to make promised (as in Henry I’s coronation charter). In addition, John had adopted the practice of Forest Eyres. These were when Justices in Eyre (i.e. Justices who travelled around form place to place) carried out inquests about infringements on the rules of the forest, because it was a great way of raising money. So again, it’s another example of where the barons accept the King has rights, but is seeking to redress a tyrannical exercise of them.]

(45)     We will appoint as justices, constables, sheriffs, or other officials, only men that know the law of the realm and are minded to keep it well.

[Here is another clause which is about a communal contract – this rule is being made on behalf of the whole community, not for individual aristocrats.]

(46)     All barons who have founded abbeys, and have charters of English kings or ancient tenure as evidence of this, may have guardianship of them when there is no abbot, as is their due.

(47)     All forests that have been created in our reign shall at once be disafforested. River-banks that have been enclosed in our reign shall be treated similarly.

[In fact, the royal forest had reached its greatest extent under Henry II. John had actually dis-afforrested wide areas, and reduced the extent considerably in his drive to raise money. So all this does is set a seal on a principle.]

(48)     All evil customs relating to forests and warrens, foresters, warreners, sheriffs and their servants, or river-banks and their wardens, are at once to be investigated in every county by twelve sworn knights of the county, and within forty days of their enquiry the evil customs are to be abolished completely and irrevocably. But we, or our chief justice if we are not in England, are first to be informed.

[Generally, the clauses in the charter about the forests were a failure, and this one particularly so. There’s no definition of the ‘evil customs’ here, there’s no clear definition of how the rules should be implemented and policed, which is the real issue about the king’s royal rights. Instead there is this investigation; and what happens is that the idea encourages local attacks on the king’s property and outbreaks of violence which gave John legitimate complaint, and the grounds for the renewal of the civil war.]

(49)     *We will at once return all hostages and charters delivered up to us by Englishmen as security for peace or for loyal service.

(50)     *We will remove completely from their offices the kinsmen of Gerard de Athée, and in future they shall hold no offices in England. The people in question are Engelard de Cigogné, Peter, Guy, and Andrew de Chanceaux, Guy de Cigogné, Geoffrey de Martigny and his brothers, Philip Marc and his brothers, with Geoffrey his nephew, and all their followers.

(51)     *As soon as peace is restored, we will remove from the kingdom all the foreign knights, bowmen, their attendants, and the mercenaries that have come to it, to its harm, with horses and arms.

[Clauses 49-51 demonstrate Magna Carta’s intention as a peace treaty – these are clearly peace terms. It might be argued that the peace treaty was very one sided – i.e. there are no clauses telling the barons what they need to give up or action they need to take. They are pretty specific, so their removal from future versions of the Charter seem entirely predictable.

Hostages had always been part of the Norman kings’ approach to maintaining the control of their barons. There had been nothing innovative in John’s tyranny – but again he simply too it too far. He was also perfectly prepared to use the hostages – as when he executed the hostages of the Welsh chieftains before he invaded Llewellyn’s lands.

The men listed in clause 50 are the alien mercenaries who John had come to rely on during the war with Phillip Augustus in France, though it’s interesting that the most notorious, Fawkes de Breaute, was not included. John had relied on these men, rather than his major barons, and this had helped to create a distance between them. He had brought many of them from France to England, and given them lands and titles which had upset the local barons. For example:

  • Gerard de Athée had been the commander of the castle of Loches, which was one of the last castles to fall to Phillip; John had a point that these mercenary captains often served him far better than barons like Robert Fitzwalter who surrendered Vaudreuil. John paid a massive 1,000 marks to ransom Gerard and bring him to England, and make him sheriff of Gloucestershire and Herefordshire.
  • Geoffrey de Martigny was custodian of Northampton castle
  • Philip Marc was sheriff of Nottinghamshire, Derbyshire and the royal forests, and a man of Tourraine. He’s a candidate for being Robin Hood’s sheriff of Nottingham, though not if you site Robin in Richard Ist’s days.

John complied with many parts of these clauses, though slowly; it took him time them to re-assemble his foreign mercenaries on the renewal of the civil war. It meant he had to reduce Rochester castle which stood between London and the ports of entry in the South East]

(52)     *To any man whom we have deprived or dispossessed of lands, castles, liberties, or rights, without the lawful judgement of his equals, we will at once restore these. In cases of dispute the matter shall be resolved by the judgement of the twenty-five barons referred to below in the clause for securing the peace (§ 61). In cases, however, where a man was deprived or dispossessed of something without the lawful judgement of his equals by our father King Henry or our brother King Richard, and it remains in our hands or is held by others under our warranty, we shall have respite for the period commonly allowed to Crusaders, unless a lawsuit had been begun, or an enquiry had been made at our order, before we took the Cross as a Crusader. On our return from the Crusade, or if we abandon it, we will at once render justice in full.

(53)     *We shall have similar respite in rendering justice in connexion with forests that are to be disafforested, or to remain forests, when these were first a-forested by our father Henry or our brother Richard; with the guardianship of lands in another person’s fee, when we have hitherto had this by virtue of a fee held of us for knight’s service by a third party; and with abbeys founded in another person’s fee, in which the lord of the fee claims to own a right. On our return from the Crusade, or if we abandon it, we will at once do full justice to complaints about these matters.

[John was, as it happens, conventionally pious. But, it’s difficult to avoid the thought that John had taken the cross not from any great desire to free the holy land but because it gave him the support of Pope Innocent III, and gave him the traditional crusaders respite from prosecution.]

(54)     *No one shall be arrested or imprisoned on the appeal of a woman for the death of any person except her husband.

[There are a few clauses about the rights of women. Clauses 7 and 8 are largely positive, defending their rights. This clause appears to confirm, though, the junior rights of women in medieval society.]

(55)     All fines that have been given to us unjustly and against the law of the land, and all fines that we have exacted unjustly, shall be entirely remitted or the matter decided by a majority judgement of the twenty-five barons referred to below in the clause for securing the peace (§ 61) together with Stephen, archbishop of Canterbury, if he can be present, and such others as he wishes to bring with him. If the archbishop cannot be present, proceedings shall continue without him, provided that if any of the twenty-five barons has been involved in a similar suit himself, his judgement shall be set aside, and someone else chosen and sworn in his place, as a substitute for the single occasion, by the rest of the twenty-five.

[The ‘histoires des ducs de Normandie’ tells a story of John immediately in the aftermath of Runnymede being stricken with gout, being carried to do judgement in the presence of the 25, who refused to excuse him from meetings, or carry out meetings in his chamber. Who knows if this is true, but being subject to the 25 cannot have been easy for a man like John, and it’s hardly surprising that civil war was soon to follow.]

(56)     If we have deprived or dispossessed any Welshmen of lands, liberties, or anything else in England or in Wales, without the lawful judgement of their equals, these are at once to be returned to them. A dispute on this point shall be determined in the Marches by the judgement of equals. English law shall apply to holdings of land in England, Welsh law to those in Wales, and the law of the Marches to those in the Marches. The Welsh shall treat us and ours’ in the same way.

(57)     *In cases where a Welshman was deprived or dispossessed of anything, without the lawful judgement of his equals, by our father King Henry or our brother King Richard, and it remains in our hands or is held by others under our warranty, we shall have respite for the period commonly allowed to Crusaders, unless a lawsuit had been begun, or an enquiry had been made at our order, before we took the Cross as a Crusader. But on our return from the Crusade, or if we abandon it, we will at once do full justice according to the laws of Wales and the said regions.

(58)     *We will at once return the son of Llewellyn, all Welsh hostages, and the charters delivered to us as security for the peace.

(59)     *With regard to the return of the sisters and hostages of Alexander, king of Scotland, his liberties and his rights, we will treat him in the same way as our other barons of England, unless it appears from the charters that we hold from his father William, formerly king of Scotland, that he should be treated otherwise. This matter shall be resolved by the judgement of his equals in our court.

[Llewellyn and Alexander were important supporters for the barons. By and large, Llewellyn was kept cooped up in Wales by William Marshal and Ranulph of Chester, But Alexander was to make it as far south as Cambridge during the civil war. Once again, the clauses demonstrate how useful it was for John that he had taken the cross to give me some respite.

The Marches were lands on the border of England and Wales. At the time of the conquest, William the Conqueror had set up large, compact and autonomous lordships along the borders of Wales, and to an extent also in the north of England. The king’s writ did not run in those territories, so the law that applied was significantly different. By the late middle ages, these lordships had largely disappeared as the need for them disappeared.

There is a clear recognition that the law of Wales is different to that of England, even where the Welsh lived in parts of Wales held by English lords. This is part of a tradition of recognising local laws and customs that applied within England as much as between England and Wales.]

(60)     All these customs and liberties that we have granted shall be observed in our kingdom in so far as concerns our own relations with our subjects. Let all men of our kingdom, whether clergy or laymen, observe them similarly in their relations with their own men.

 [You can imagine John inserting this with come glee into the Charter. It is clear that some in the baronial charter were motivated by a desire to win back their individual rights and bring John down. But it is equally clear that many of them, and Stephen Langton, were motivated by a general desire to improve administration according to better and more closely defined laws. Before and after Magna Carta some barons issued their own charter of liberties to the men of their honours – Peter de Ros and Ranulph of Chester, for example.]

(61)     *Since we have granted all these things for God, for the better ordering of our kingdom, and to allay the discord that has arisen between us and our barons, and since we desire that they shall be enjoyed in their entirety, with lasting strength, for ever, we give and grant to the barons the following security:

The barons shall elect twenty-five of their number to keep, and cause to be observed with all their might, the peace and liberties granted and confirmed to them by this charter.

If we, our chief justice, our officials, or any of our servants offend in any respect against any man, or transgress any of the articles of the peace or of this security, and the offence is made known to four of the said twenty-five barons, they shall come to us – or in our absence from the kingdom to the chief justice – to declare it and claim immediate redress. If we, or in our absence abroad the chief justice, make no redress within forty days, reckoning from the day on which the offence was declared to us or to him, the four barons shall refer the matter to the rest of the twenty-five barons, who may distrain upon and assail us in every way possible, with the support of the whole community of the land, by seizing our castles, lands, possessions, or anything else saving only our own person and those of the queen and our children, until they have secured such redress as they have determined upon. Having secured the redress, they may then resume their normal obedience to us.

Any man who so desires may take an oath to obey the commands of the twenty-five barons for the achievement of these ends, and to join with them in assailing us to the utmost of his power. We give public and free permission to take this oath to any man who so desires, and at no time will we prohibit any man from taking it. Indeed, we will compel any of our subjects who are unwilling to take it to swear it at our command.

If-one of the twenty-five barons dies or leaves the country, or is prevented in any other way from discharging his duties, the rest of them shall choose another baron in his place, at their discretion, who shall be duly sworn in as they were.

In the event of disagreement among the twenty-five barons on any matter referred to them for decision, the verdict of the majority present shall have the same validity as a unanimous verdict of the whole twenty-five, whether these were all present or some of those summoned were unwilling or unable to appear.

The twenty-five barons shall swear to obey all the above articles faithfully, and shall cause them to be obeyed by others to the best of their power.

We will not seek to procure from anyone, either by our own efforts or those of a third party, anything by which any part of these concessions or liberties might be revoked or diminished. Should such a thing be procured, it shall be null and void and we will at no time make use of it, either ourselves or through a third party.

[The committee of 25 has been seen as the precursor to parliament; but this would be to take something of as leap. The committee was seen not as a council, but purely as a court of appeal, and related specifically to clauses of restitution like c25. It had no power to act unless it received a complaint.

That’s not to say it wasn’t a radical departure. For the first time, the king’s subjects were able to remove lands from the king, in practice by force, and yet remain his loyal subjects. It is an embodiment of the great principle behind Magna Carta that the king was now restrained by the rule of law.

The clause makes reference to the ‘community of the realm’; so again, here is evidence of the unusually strong sense of the treaty being made in association with the whole community. This also ran through the Articles of the Barons (a draft treaty which the barons brought to the negotiating table and which survive) and the clauses that refer to all free men, such as clause 15 and clause 60. In this Magna Carta is exceptional; continental charters tend to be much more focussed on the Baronial class. It’s likely that the influence of Stephen Langton played a major part in this.]

(62)     *We have remitted and pardoned fully to all men any ill-will, hurt, or grudges that have arisen between us and our subjects, whether clergy or laymen, since the beginning of the dispute. We have in addition remitted fully, and for our own part have also pardoned, to all clergy and laymen any offences committed as a result of the said dispute between Easter in the sixteenth year of our reign (i.e. 1215) and the restoration of peace.

In addition we have caused letters patent to be made for the barons, bearing witness to this security and to the concessions set out above, over the seals of Stephen archbishop of Canterbury, Henry archbishop of Dublin, the other bishops named above, and Master Pandulf.

(63)     *It is accordingly our wish and command that the English Church shall be free, and that men in our kingdom shall have and keep all these liberties, rights, and concessions, well and peaceably in their fullness and entirety for them and their heirs, of us and our heirs, in all things and all places for ever.

Both we and the barons have sworn that all this shall be observed in good faith and without deceit. Witness the above mentioned people and many others.

Given by our 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

Leave a Reply