Guest Contributor: Professor Sally E. Hadden’s “The Many Meanings of Magna Carta”
It is with great pleasure that we post an entry from a distinguished guest contributor and a good friend of Litera Scripta, Sally E. Hadden, of Western Michigan University. Magna Carta is a foundation stone of our legal culture, and to celebrate its 800th Anniversary we are proud to include the following essay.
Although jewelry is not something we immediately associate with law or history, the older a legal document like the Magna Carta becomes, the more it seems to resemble a pearl. Pearls begin as insignificant sand on an ocean floor, then quite by accident (or in the case of cultured pearls, quite on purpose) a grain of sand will become lodged inside a living animal—an oyster. Sand is an irritant, even for an oyster, and to rid itself of the rough edges and uneven edges found on a grain of sand, an oyster will secrete fluid that engulfs the grain of sand, gradually making it round with softened curves that the oyster then goes on living with, sometimes for decades. The pearl is an unintended by-product of what began life as an unwanted, unlooked-for irritant, thrust into the oyster, and initially, the oyster would have expelled the sand if it were at all possible. Once a fisherman finds this oyster and opens it, years or decades later, the shell and husk are no longer vital: the pearl is of greater value than the organism that once gave it birth.
This essay reviews how the Magna Carta began its existence as one of those irritating grains of sand, but eventually developed in ways that it became the pearl of greater value than what surrounded it. Its evolution and growth in size and importance can be tracked through four different periods of time, where it acquired, like the pearl, new layers of meaning for individuals considering its existence, starting with its creation in the thirteenth century, and moving forward to the seventeenth and later the eighteenth centuries. The meanings of Magna Carta have altered, expanded, and increased depending on how it was used at a particular moment in time—and unlike a pearl, the number of Magna Carta’s meanings is still increasing.
Let’s start with the creation of this unusual document, which means going back to learn more about King John and the English nobles of 1215. King John was the youngest son of Henry II and Eleanor of Aquitaine. You’re probably more familiar with John’s elder brother Richard, better known by his nickname, the Lionheart, who went on the Third Crusade, was captured, ransomed, returned home to England, and died childless. For more on Henry, Eleanor, and their sons Richard, Geoffrey, and John, one may watch the film “The Lion in Winter”, which provides—for Hollywood—an introduction to this amazing family. John eventually got the throne because his elder brothers (Young Henry, Richard, and Geoffrey) did not live long enough or produce heirs to succeed them. John inherited a vast kingdom in 1199, spread on two sides of the English Channel. Through his mother, he had control of lands in Aquitaine. Through his mother’s relatives and father’s ancestors, John could also lay claim to vast swaths of territory: Normandy, Brittany, Maine, Anjou, Touraine, Poitou, Gascony, the Pyrenees, and of course Aquitaine. On a contemporary map, this is roughly half of modern-day France. Although Richard managed to defend these land claims successfully, it would be John’s failure to do so that set the stage for Magna Carta.
John had the misfortune to be king at the same time as Philip Augustus, king of France, who was determined to take the land John held. Through a series of wars, Philip Augustus captured many parts of John’s empire, while simultaneously placing a huge drain upon John’s treasury—John was spending to supply his knights and ordinary soldiers, as well as a large army of hired mercenaries. An eternal truth is that wars are expensive, and this was certainly true in the 13th century. One must also remember that land equaled money in this time period. Every time John lost land in France, he lost a source of revenue—meaning that the cost of his next military campaign fell on a smaller number of his remaining subjects. The enormous expense of fighting a continental war encouraged John to exploit his feudal rights and impose extortionate demands upon his English nobles and royal officeholders. John was a bad military leader, a poor money manager, and so unpleasant personally that he alienated virtually all of his supporters within only a few years. It’s been said that even his own mother did not like him. Pressing his nobles to give him money, year after year, to fight these wars against Philip Augustus was bad enough; losing battle after battle in France made things worse.
Within 5 years, John’s military ineptitude was obvious to all. By 1204 he had lost nearly half of the territory in France he had inherited. This was a disaster for his English nobles who also held lands in those French territories—like John, they too lost annual revenue from Normandy, Brittany and so on. John’s inability to focus on one war at a time created additional financial havoc: he was fighting other wars in Ireland, Wales, Scotland, while he continued to fight in France, and none of his military plans worked. The wars dragged on. By 1214, his nobles were fed up with how he was forcing them to pay for these multiple campaigns.
John’s methods of getting money went beyond what was acceptable in his own day and time. In addition to his usual rents and other income, he extracted money from office holders like sheriffs, from plaintiffs or defendants by accepting and even inviting bribes to render favorable decisions in his courts, and from the land tenure system, which he abused to force men to pay more frequent reliefs than were considered normal. (traditionally there were only three times when a lord could ask his vassals for reliefs: marrying off his eldest daughter, knighting his eldest son, or being ransomed). Today, we would simply call what John did extortion. John declared new reliefs for events that he called up at a whim. The nobles might have overlooked all these financial extractions IF he had won land and kept their revenue flowing, but nobody wants to pay the seemingly endless tab of a chronic military loser.
John became increasingly unscrupulous in collecting the money “owed” to him. He seized nobles’ lands, took their children as hostages, and imprisoned men who could not or would not pay what he claimed they owed him. The more unjustly he behaved toward his nobles, the more he encouraged his opponents to organize themselves against him.
In 1214, the nobles in opposition to John, who came from many aristocratic ranks, far outnumbered those who remained loyal to him. Their first plan was to petition the pope, who was technically John’s feudal overlord, asking him to intervene to confirm laws set down by Henry I and Edward the Confessor, which they claimed John violated regularly. The Pope and Archbishop of Canterbury encouraged mediation; the king refused to show up to these arranged meetings. When a group of rebel barons renounced their allegiance to the king—effectively starting civil war—John denounced them.
But after they showed their military strength by capturing the Tower of London, John (surprisingly) agreed to meet them in June 1215 at a place called Runnymede and (more surprisingly) agreed to their list of demands. The first thing to remember about the Magna Carta is that it was not a statement of fundamental principles of liberty, but instead represented (to the nobles) a series of concessions addressing long-standing grievances they had against John’s arbitrary style of governance. Most clauses placed limits on the king’s rights over things like taxation and administration. About 2/3rds of the clauses focused upon royal abuses of money collection or customs and specified how barons who felt themselves abused might get redress. The clauses did not abolish the king’s rights, but simply regulated them.
The clauses that did focus upon abuses of justice are the ones, however, that people living in the 21st century are often most interested in, not the financial restriction clauses. No official was to put a man on trial on the basis of his own unsubstantiated statement, and the king was prohibited from imprisoning, outlawing, exiling or proceeding with force against any free man except by the lawful judgment of the peers, that is to say, his own aristocratic peers, since only nobles were expecting to use the Magna Carta to obtain redress. The clause after that forbade the king from selling, denying or delaying right or justice. We often think of these as elements of due process. These clauses, today, seem the most important. In 1215, they were 39th and 40th in the list drawn up, out of 63.
To the nobles, probably the most important was the 52nd, which set up a commission of 25 barons who would enforce John’s compliance with the document, and would meet every three years. These men would offer the king advice but also restrain his worst abuses.
The royal chancery quickly produced copies of Magna Carta, and the four surviving copies today are all dated June 15; on June 19, the barons made a formal peace with the king and renewed their oaths of allegiance. However, John doublecrossed them. Within the year, John repudiated the document, claiming to the pope that his oath to support it had been extorted by force and therefore Magna Carta should not be considered valid (and to be fair, the nobles at Runnymede did show up wearing full suits of armor). Pope Innocent III agreed, and permitted John to rescind his agreement to it. To John, the document’s meaning was clear: it meant nothing. It was an irritant and he intended to get rid of it, as quickly as possible. John’s repudiation seemed to be a breach of faith, a situation the nobles found unacceptable. The only thing that stopped a second outbreak of civil unrest when John did this was that he died in October 1216. And so, in 1215, the document, known as Magna Carta, had two distinct meanings: for the nobles, it was protection against abuse that they suffered from a willful king. For John, it was a means to gain a breathing space in his war with the nobles, and a document he was willing to repudiate at the first opportunity.
October 1216 could easily have been the end of Magna Carta: it had been overturned by a pope, the king who agreed to it was dead, and John’s son and heir was only 9 years old. It is in 1216 and 1217 that Magna Carta began its transformation into something new. John’s son Henry obviously could not rule for many years. During his minority, his regent, William Marshal, was desperate to avoid war and confirm Henry’s eventual rule over England. As a result, Marshal reissued the Magna Carta in 1216 and 1217 and again in later years, taking out some sections and putting them in their own separate charter—the Charter of Forests–and adding others. Meanwhile, the gathering of 25 nobles to confer on the powers they had gained through the 52nd clause continued until Henry came of age, and beyond. Even though Pope Innocent III had absolved King John of any requirement to abide by Magna Carta, the peers of this age simply ignored that decree.
The message that those peers wanted future kings to take away from this development was that the law was a power in its own right and the king could not set himself above it. Henry, upon coming of age, would reissue the document several times, modified with clauses taken out; for instance, Henry reissued the Magna Carta in 1225 in return for a grant of taxes from his nobles. Starting in the 1260s, Magna Carta was read twice a year in county courts, and beginning in the 1290s, it was read twice a year in all cathedrals. In 1297, the text of the 1225 version was copied onto the first statute roll of Parliament. In 1341 Parliament required officers of state to swear to abide by its terms. In the 14th century, Parliament reinterpreted the clause relating to judgement by the peers to being a lawful trial by peers, meaning to us, trial by juries. And this is how the document acquired another layer of meaning. It gradually changed from being a document extorted from a reluctant king threatened with civil war into a standard royal declaration of the law and custom of the country, embraced by the people, well known and widely remembered. It came to mean “the law of the land.”
It was in the seventeenth century that Magna Carta changed and grew again, from being a document with a particular set of legal meanings to being better known for its constitutional implications. It was in the 17th century that lawyers and judges began to assert that Magna Carta stated fundamental, even constitutional, principles of law. They did this because of a newly emerging political philosophy had taken hold of their monarchs, and they opposed it. The Stuart Kings, James the First and Charles the First, believed that they ruled by the Divine Right of Kings, and that they were therefore not restrained by ordinary laws nor by the Magna Carta. In opposition to this sort of thinking, a group of lawyers and judges like Edward Coke, who was the Lord Chief Justice at the time, insisted that the Magna Carta made the king subject to the law like everyone else.
Coke had a somewhat selective approach to interpreting Magna Carta, one which reinvented the document’s past and covered that over with a new glossy shell. He viewed it as a declaration of individual liberty, rather than a code of customs and laws designed to serve the interests of a bunch of 13th century noblemen. He tried to argue that Magna Carta was the origin of the principle of trial by jury for everyone—whichnreally only came to be accepted as a practice nearly 100 years after Magna Carta first appeared. But his arguments do reflect a new method of thinking about Magna Carta, one that became common to men like Coke.
What sparked this upsurge in interest in Magna Carta? Well, the Stuart kings had much in common with King John of old: they held Parliaments when they pleased, raised taxes via methods that previous kings had not used for centuries (a strategy James I and then his son Charles I used because Parliament refused to grant them increased revenues), and found inventive ways to extract money from the aristocratic classes as well as cities like London. It was James and Charles who heavily relied on the Court of Star Chamber to prosecute their political enemies, and even to fine juries that rendered verdicts they didn’t agree with. They’d fine almost anyone for anything, if doing so would yield money: Charles even fined men who failed to appear at his coronation, using a law that had not been invoked in over 400 years. Over and over, the Stuart kings attempted to rule without Parliament, tax however they wanted. When some men refused to pay, like the Five Knights did in 1627 (sometimes called Darnell’s case), Charles had them imprisoned. Disputes about the Magna Carta then were renewed—was not their imprisonment without a trial a violation of the great charter? The question was put off for a time during the violence of the civil conflict in the 1640s, and then Charles’s execution.
When the line of Stuart kings was restored to the English throne in 1660, many feared a return to the high-handed rule of their earlier years. They were right to fear. Charles’s sons, Charles II and later James II, continued their father and grandfather’s habits of attempting to rule without Parliament, tax without the people’s consent, and abuse the power of the courts. Fed up, in 1689, the nobles ran James II out of the country, then (somewhat ironically) claimed that he abdicated, and put William and Mary on the throne in his place. A condition of their coronation was that William and Mary had to agree to the English Bill of Rights—a listing of rights that echoed many of the provisions found in the Magna Carta.
And so Magna Carta’s meaning, in the context of 1689, grew and was reshaped once more, for it provided inspiration for another document that described liberty, as well as a statement about where political sovereignty lay. The English Bill of Rights guaranteed many things: kings could not tax without Parliament; they could not prevent Parliament from gathering; kings could not use standing armies for the purposes of intimidation; they could not create new courts like the Star Chamber; and many more guarantees of personal liberty. From this point forward, English monarchs had been warned: Parliament would not tolerate a ruler who believed in the Divine Right of Kings. If need be, Parliament could and would replace a monarch—indicating where true sovereignty resided in the political system thenceforth.
And for the fourth political context in which Magna Carta’s meaning expanded and grew, we skip across the Atlantic, to the events of the American Revolution. The document was already well known before the 1770s. In the American context, Magna Carta’s language can be found again and again in the colonial era. Its language was quoted by the Massachusetts Body of Liberties in 1641, and later the Virginia Bill of Rights (1776), and its words were echoed by Tom Paine, John Dickinson, and also Thomas Jefferson.
A newly arrived immigrant to the colonies, Thomas Paine, referred to Magna Carta when he crafted his pamphlet Common Sense, which appeared in January 1776, six months before the official declaration of independence. In Common Sense, Paine wrote with emotion about many things: the Bible, the family, nature, as well as politics. He used every tool at his disposal to convince other Americans that independence was the correct, next step to take in their fight against the British. Paine demolished the idea that English liberty a gift granted by the king or Parliament. Liberty, Paine wrote, only existed because of “the constitution of the people, and not…the constitution of the government.” Paine went on to argue for a new government to be established, one framed under a “CONTINENTAL CHARTER of the United Colonies (Answering to what is called the Magna Carta of England)” which would have a president and a unicameral assembly.
Knowledge of Magna Carta was also being revived through the printed versions of Edward Coke’s writings on Magna Carta, and later William Blackstone’s lectures at Oxford, reprinted as the Commentaries on the laws of England, that circulated widely among learned lawyers like John Dickinson and Thomas Jefferson. Dickinson, who helped draft the Articles of Confederation, the first national government of the united colonies, wrote a number of pamphlets in the revolutionary era. In one, entitled “Address to the Inhabitants of the Colonies,” that he penned with help from fellow lawyer and Pennsylvanian James Wilson, Dickinson asserted that the Continental Congress had the right to rule the united colonies because they were just like “the assembly of the barons at RUNNINGMEDE, when MAGNA CHARTA was signed, the Convention Parliament that recalled Charles II, and the Convention of Lords and Commons that placed King William on the throne.”
Thomas Jefferson did more than analogize. He incorporated two elements from Magna Carta directly into the Declaration of Independence, while mentioning several indirectly. Among his extensive list of complaints against King George III was the taking away of trial by jury (citing clause 39), and also the taking away of charters without cause (clause 40). Deprivation of trial by jury happened when cases were moved from common law courts to the vice admiralty courts, which sat without only a single judge; the Massachusetts charter was revoked in 1774 as a response to the Tea Party of Boston in 1773. Jefferson also complained of special jurisdiction courts, and the impressment of sailors on the high seas without due process (a glance toward habeas corpus). For Paine, Dickinson, and Jefferson, the purpose of the Magna Carta was again transformed. Originally, the document was intended to curtail abuses by a king against his nobles; now it was being used to justify the creation of a new state to form a government, to justify independence, and to claim all the powers that a new government would have when it cast off an old one that no longer suited. To return to our analogy of the pearl and oyster, it was at this moment that the oyster was cracked open, and the pearl harvested, as these men rejected monarchy and the protective covering that had originally produced this document.
Yet, unlike a pearl, Magna Carta continues to acquire new layers of meaning. Englishmen and Americans continue to rely upon the words and ideas of Magna Carta, as well as its non-legal aspects as an icon and cultural marker. Its guarantees of due process are found in the Fifth and Fourteenth Amendments to the national U.S. Constitution. It has been used to cement alliances, as a touchstone of shared English and American experiences and heritage—Winston Churchill referred to it more than once during World War II when he wished to strengthen Anglo-American ties.
Indeed, its importance has spread well beyond the English isles and America proper. Important core ideas from Magna Carta can be found in the United Nations’ Universal Declaration of Human Rights written in 1948: in article 9, that no one shall be subject to arbitrary arrest, detention or exile, or article 10, that every person is entitled to a fair and public hearing for any determination of his rights and for any criminal charges made. And its fame has spread to the most unlikely places. The Magna Carta was invoked in 1994, by the indigenous peoples of the Lancandan jungle, in Mexico, against their own government; it was appealed to by Nigerian women in 2003, when Chevron oil company threatened to widen the Escravos River in the Bight of Benin, thus threatening to destroy their forests and villages. The precise wording of the Magna Carta meant less to these individuals than did its cultural and legal meanings—to them, Magna Carta meant a way to hold higher authorities to account for their actions by people who thought themselves ignored, overlooked, and in need of protection against their own governments. Magna Carta continues to add and acquire new meanings in new cultural settings.
In 1215, Magna Carta gave the appearance of rights, limiting the power of the sovereign so that he could not abuse his noblemen in particular ways. But initially, the people granted privileges by the Magna Carta were not ordinary citizens: only the elite stood to benefit in 1215 from the Great Charter. Only later did the document take on new meanings: it gained greater currency and public awareness by being reissued, at a time when a young king, Henry III, was vulnerable, and needed a wider base of support. Men kept referring back to Magna Carta, finding things within it that John and Henry certainly would not have agreed to, much less granted to their subjects. Its meaning was renewed and expanded in the 17th century, when the Stuart kings pushed the Divine Right of Kings to the point that lawyers, judges, and local leaders rose up and demanded their rights be respected again, and it inspired the creation of another document, the English Bill of Rights, to insure that monarchs would no longer be the ultimate sovereign in England’s political system. And its mythic qualities made it essential for men like Thomas Paine, Thomas Jefferson, who incorporated its words, if not its precise meaning, into their justifications of a new government, one without any monarch at all.
And so Magna Carta has grown more lustrous with time, polished and gleaming as its original message is encased within new layers of intent and usage. As is true of all documents that would go on living, it has been renewed with many meanings, and continues to be renewed in our own time. Watch this space: Magna Carta’s next layer of meaning and renewed importance may be right around the corner.
For further reading on Magna Carta, see
Claire Breay, Magna Carta, Manuscripts and Myths
David Carpenter, Magna Carta
Geoffrey Hindley, A Brief History of the Magna Carta
J.C. Holt, Magna Carta 2d ed.
- E. Dick Howard, Magna Carta: Text and Commentary
Peter Linebaugh, Magna Carta Manifesto
Nicholas Vincent, Magna Carta: A Very Short Introduction
My thanks to Devin Schindler and the dean and staff at Western Michigan University Cooley School of Law, the Grand Rapids, Michigan Bar association, as well as Ken Herrington and John McLeod of the Society of Colonial Wars (Kentucky chapter) for the opportunity to present earlier versions of this essay to their respective groups.