Preface

The “Magna Carta” is one of the greatest and most famous constitutional documents of all times, especially in the English-speaking world, where it is held in high esteem and where it has influenced key elements of the American or Australian legal systems and constitutions. It is also widely regarded in Britain as the founding document of constitutional law, preceding such fundamental texts as the Habeas Corpus, the Petition of Right, the Bill of Right, the Act of Settlement, but following the Charter of Liberties. As a London-based digital publisher with French roots, Les Éditons de Londres is proud that “Magna Carta” should be the first of its English language publications. We see a parallel between this key constitutional text, synonymous with the necessity for the people, or in this instance, the twenty five Barons, to limit the powers of the despot, and our first French-language publication, the Discours de la servitude volontaire by Étienne de La Boétie, which exhorts the people not to abdicate their liberties to the tyrant.

The Magna Carta, the myth and the reality

Still, saying that this is one of the most fundamental texts of constitutional law anywhere does not signify one should hold the document in some sort of semi-sacred adoration. As with all key attributes of what creates and sustains the identity of a country, there is a part of myth in the “Magna Carta”. So, let’s remind ourselves with the following:

The Magna Carta took its current shape way after the Thirteenth century: Edward Coke, and many others, had a major role in shaping the sacred and central perception that the “Magna Carta” has today in most minds as the foundation of Constitutional law and the guarantor of British liberties. Still, some of the principles of Common Law precede the Norman invasion and therefore the drafting of the “Magna Carta”.

The Magna Carta was never really enforced, was altered many times, most of its articles repealed. Following the original drafting of the “Magna Carta” in 1215, we had the Charter of the Forest in 1217, then the Great Charter of 1225 issued by Henry the Third, then confirmed in 1237. In 1297, Edward I reissued the Charter of 1225. Today, most of the articles of the original “Magna Carta” have been repealed. In addition, the Pope Innocent III, to whom John had sworn allegiance, declared it invalid soon after its creation, and the document was never legally valid for more than three months apparently. What helped the future of the “Magna Carta” was the death of John in October 1216.

The “Magna Carta” was never signed: although it bears the royal seal, the Barons did not put their seal on it.

The “Magna Carta” was not such an “original”: in fact, many of its articles were copied word for word from a less known charter called the Charter of Liberties, issued in 1100 and dating back to Henry the First.

Historical context

King John was not the most popular of English Kings, especially with the northern Barons. He had been involved in unsuccessful wars, was losing ground against the French, England was in fear of a potential new French invasion, which had forced John to submit to the papacy (Innocent III) in 1213, therefore apparently delaying a possible French invasion. Fighting for his throne, seeking alliances outside of his borders, submitting to Rome, unsuccessful wars, high taxes, had not made John a very popular king at home, but the defeat to the French in July 1214 at the battle of Bouvines was the straw which broke the camel’s back.

The Barons revolted against the rule of King John, and started six month long negotiations from January 1215, asked John to confirm the Charter of Liberties (dating back to 1100). They elaborated the articles of the Barons, which they forced John to agree to in the meadow of Runnymede on June 15th, 1215. In return for his royal seal, they swore allegiance to him, and on June 19th, 1215 the Magna Carta was issued. Still, as soon as John agreed to the Magna Carta, he asked the Pope to nullify it, which the latter did nine weeks later. Then civil war started. King John died in 1216, and they got the new King to reissue and confirm the Magna Carta in 1216. The Charter of the Forest was added a year after.

The Magna Carta was about protection of the rights of the Barons. It was the first attempt to limit the powers of the monarch by the feudal powers.

Other things to know about the Magna Carta

There was never any one original of the “Magna Carta”, just a number of simultaneous sealed originals: 41 at least, one for each county, and also for the cinque ports. Very few originals subsist: one in the Salisbury cathedral, and two in the British Library (the original in the Lincoln Cathedral is an original of the Charter of the Forest). More technically, the Magna Carta was written on calf skin, and the ink was made of a combination of lamp black, oak gall and gum Arabic. The document, long of about 3500 words, was written in short-hand Medieval Latin.

As we mentioned earlier, the “Magna Carta” was only in force for about nine weeks, until it was nullified by the Pope on 24 August 1215, upon the request of King John. It was then re-issued in 1216, then in 1217, and then again in 1225. It was confirmed as English Law in 1297.

So, in conclusion, the “Magna Carta” was the product of a hard negotiation between a hated king and bullish Barons who wanted to get rid of him, and saw the defeat of Bouvines as a good opportunity to do so. The original document of the Articles of the Barons included something later called clause 61, which allowed the twenty five Barons to overrule the King in case he would not respect the provisions of the Charter. This clause 61 quickly disappeared.

Articles of the original “Magna Carta” which are still law today

“1-We have, in the first place, granted to God, and by this Our present Charter have confirmed, for Us and Our heirs forever, that the English Church shall be free, its rights undiminished, its liberties unimpaired; and that We wish this to be observed appears from the fact that We of Our own free will, before the outbreak of the disputes between Us and Our barons, granted and confirmed by Charter the freedom of elections, which is considered most important and necessary to the English Church. We have also granted to all the free men of Our kingdom, for Us and Our heirs forever, all the liberties underwritten, to have and to hold them and their heirs of Us and Our heirs.”

“13- The City of London shall enjoy all her ancient liberties and free customs, both by land and water. We also decree and grant that all other cities, boroughs, towns and ports shall have all their liberties and free customs.”

“39- No free man shall be taken, imprisoned, outlawed, banished, or in any way destroyed, nor will We procede against or persecute him, except by lawful judgement of his equals and the law of the land.”

“40- To no one will We sell, to no one will We deny or delay, right or justice.”

Magna Carta and the Common Law

It has become clear that the Great Charter is not an exception in the constitutional history of England but rather a key milestone in a long series of constitutional documents aiming to protect the people against the sovereign, establish the rule of law and submit the powers in place to the scrutiny of the common people. There is nothing sacrosanct about the “Magna Carta”; it is “just” the most famous document, partially because of the circumstances under which it was enacted, ie coercion of the Barons upon King John, which itself sounds like a rehearsal of what would happen with the 17th century overthrow of the King and the affirmation of the supremacy of Parliament. Laws predated the “Magna Carta” in both custom and natural law. Therefore, even if the “Magna Carta” is a key milestone in the history of England, the “Magna Carta” takes its importance not because of its uniqueness but because of its unique position in a long chain of events and documents forming the unique nature of the uncodified constitution of England.