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The Rebirth of Magna Carta

From the perspective of the twenty-first century, Magna Carta appears to have kick-started a steady process of the transference of power from the monarch to the people; this is not the case. In fact, the Great Charter fell into virtual obscurity during the late Middle Ages only to be reborn through the writings of the renowned seventeenth century jurist, Sir Edward Coke (1552-1634).

Coke’s interpretation of Magna Carta as the seminal document guaranteeing the rights and liberties of the English people became part of legal texts distributed throughout England and its expanding overseas empire. In fact, the rebirth of the Great Charter was instrumental in shaping both the language and the spirit of the American Declaration of Independence and the growth of representative government throughout the English speaking world.

The original incarnation of Magna Carta was significant in the thirteenth century, then faded into comparative obscurity. Like his father, King John, Henry III was unpopular and often in conflict with his barons. The nobility rallied around the King’s brother-in-law, Simon de Montfort, 6th Earl of Leicester, who drew up the Provisions of Oxford in 1258. This document demanded that Henry III “faithfully keep and observe the charter of liberties of England”.

When the King repudiated the Provisions of Oxford, Montfort led the Second Barons’ War from 1264 to 1267. During his brief period of control over the government in 1265, Montfort called England’s first elected parliament, inspired by the principles enshrined in Magna Carta. The defeat and death of Montfort at the Battle of Evesham in 1267 temporarily suspended this early experiment in parliamentary democracy.

As King, Henry III’s son Edward I duly reissued Magna Carta and the Charter of the Forest in 1297 and declared that he was bound by the principles in these documents. Edward also revived Montfort’s practice of calling parliaments that included the landed nobility and urban elites, declaring in 1295, “What touches all, should be approved of by all, and it is also clear that common dangers should be met by measures agreed upon in common.”

The role of Edward’s parliaments, however, was exclusively to levy taxes to pay for the King’s expensive wars with Wales and Scotland. A popular poem from his reign stated, “The king desires to get our gold/the queen, our manors fair to hold. . .”. Edward had learned from the mistakes of his father and grandfather and incorporated Magna Carta into his public image but his actions demonstrated that he valued strong central leadership over building an evolving consensus with his barons. The thirteenth century began with the barons drafting Magna Carta to limit the power of King John and ended with John’s grandson Edward refusing to tolerate any opposition to the expansion of his power throughout Great Britain.

During the one hundred and fifty years following Edward I’s death in 1307, the political importance of Magna Carta gradually declined. While the thirteenth century had seen the development of whole new charters such as the Charter of the Forest and the Provisions of Oxford, fourteenth century statutes simply refined sections of the Great Charter to make them more inclusive. Edward I’s grandson, Edward III (r.1327-1377) clarified that clause 39, which forbade arbitrary imprisonment or exile did not just apply to “freemen” but protected any “man, of whatever estate or condition he may be”. Edward III’s interpretation of Magna Carta informed future interpretations of the Charter because his statutes were the first to employ the phrase “due process of the law.”

Henry VI (r.1422-1461 and 1470-1471) was the last monarch to publicly confirm the articles of Magna Carta, an action that had become increasingly ceremonial under his immediate predecessors. With England involved in the Hundred Years War against France and the Wars of the Roses between the Lancaster and York branches of the reigning dynasty, strong central leadership appeared to be more desirable than rule based on consensus.

There was potential for a rebirth of Magna Carta during the reign of Henry VIII (r.1509-1547). Henry was well educated and interested in the law. Throughout his reign, he applied a veneer of due process to even his most arbitrary actions. Both Chancellor Thomas More and the leader of the Pilgrimage of Grace rebellion, Robert Aske, cited Magna Carta’s guarantee of the freedom of the English Church to support their opposition to the King’s supremacy over the Church of England. Henry VIII, however, rejected any interpretation of the law that limited his power over either the church or state. Both More and Aske were executed in the mid-1530s and Magna Carta remained an obscure legal text for almost another century.

Coke-Instit
The man responsible for finally reviving Magna Carta for the modern age was the renowned jurist Sir Edward Coke. In contrast to many of his contemporaries, he regarded Magna Carta as part of a continuum of English common law that predated the Norman Conquest of 1066, and a key document within England’s “ancient constitution.” According to Coke, Magna Carta received its name “in respect of the great importance and weightiness of the matter.” As Chief Justice of the Common Pleas, Coke employed the precedent set by the Great Charter to affirm that not even the King was above the law.

This stance was contrary to the views of James I (r.1603-1625) who was drawn to continental European ideas of divine-right monarchy. Coke and the King debated the matter in 1608. Coke later wrote that he had said, “the law was a golden met-wand and measure to try the causes of the subjects; and which protected his majesty in safety and peace; with which the king was greatly offended, and said, that then he should be under the law, which was treason to affirm.” During the reign of Henry VIII, this debate would have ended Coke’s legal career – and his life – but James had a different approach to dealing with the dissenting opinions of his subjects. The King removed Coke from the Common Pleas and appointed him Chief Justice of the King’s Bench, where the jurist’s legal acumen would directly serve the sovereign’s interests.

James I’s son, Charles I was far less tolerant of opposing viewpoints. Like his father, Charles considered himself King by divine right. Parliament attempted to limit his powers, refusing to grant new taxes unless the King agreed to the Petition of Right, authored by Coke in 1628 and inspired by Magna Carta. The Petition affirmed that the King was subject to the law and called upon him to respect the rights of his subjects as codified in “The Great Charter of the Liberties of England.” In the same manner as John and Henry III, Charles I initially accepted the constraints on his power imposed by his subjects then rejected these constraints. The King’s rejection of the Petition of Right precipitated the English Civil Wars of the 1640s and the trial and execution of Charles I in 1649 for high treason in the name of the people of England.

Coke’s interpretation of Magna Carta spread around the world because he was also the author of legal texts. The Institutes of the Laws of England, Coke’s four volume work affirming the primacy of Magna Carta to English law, eventually became the standard legal text in the Thirteen Colonies, read by future signatories of the American Declaration of Independence. Thomas Jefferson wrote to James Madison about Coke, stating, “a sounder Whig never wrote, nor of profounder learning in the orthodox doctrines of the British constitution, or in what were called English liberties”. Coke’s interpretation of Magna Carta shaped the American Revolution in the same manner as the English Civil Wars.

The emergence of constitutional monarchy, which remains the system of government for sixteen commonwealth realms including the United Kingdom and Canada, also emerged from Coke’s reading of Magna Carta. The Glorious Revolution of 1688, which brought the first constitutional monarchs, William III and Mary II, to the throne, appeared to be part of Coke’s continuum of increased popular liberties for the people. In 1770, former British Prime Minister William Pitt the Elder affirmed that Magna Carta was “the Bible of the English Constitution”. Eighteenth century accords between monarchs and their subjects were interpreted through the precedent set by the Great Charter. One of Canada’s first constitutional documents, the Royal Proclamation of 1763, became known as “The Indian Magna Carta” because it affirmed the land rights of the First Nations in British North America.

Today, the rebirth of Magna Carta continues to shape modern declarations of human rights and freedoms throughout the English-speaking world. At the end of the Second World War, British Prime Minister Winston Churchill spoke in a broadcast to the United States of the “great principles of freedom and the rights of man which are the joint inheritance of the English speaking world and which through Magna Carta, the Bill of Rights, the Habeas Corpus, trial by jury, and the English common law find their most famous expression in the American Declaration of Independence.” In the twentieth century, Magna Carta informed the United Nations Universal Declaration of Human Rights. The profound influence of Magna Carta on modern law and contemporary society was not inevitable. The Great Charter spent centuries in obscurity. The rebirth of Magna Carta in the seventeenth century, however, resulted in the Great Charter becoming one of the most significant documents in recorded history, informing common law and human rights legislation to present day.

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  1. Pingback: The Rebirth of Magna Carta | Carolyn Harris: Royal Historian

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