It is contended that John Lackland, king of England from 1199 to 1216, exercised his feudal rights to the utmost to squeeze money from his vassals. John’s various financial excesses and abuses of power led to a barons rebellion, in the form not of a conspiracy to murder John but of forcing John to sign a document called the Magna Charta (or Charta), or great Charter. The barons, in order to establish a precedent for reform, revived an earlier charter written during the reign of Henry I (1100 – 1135) that granted baronial rights and privileges. Unlike the charter of Henry I, the Magna Charta of 1215 was not granted by the king; rather, it was based on straight-forward demands by the subjects in order to guarantee continued obedience to the king. The charter is characterized as a bargain struck between the king and the nation that directly limited the powers of government.

The charter itself is designed mostly to remedy feudal abuses and does not, as is often assumed, provide safeguards of Anglo-American liberty. But its language is broad enough that reformers in future centuries used it as an instrument to fight governmental oppression. There are two key provisions that support this use: the first allows the nation, not the king, the right to ordain taxation. The second guarantees a trial by jury for all men, prohibits arbitrary arrest, and demands a speedy trial that follows the due process of the law. It has been reasoned that the greatest strength of the Magna Charta is its adaptability to fight governmental absolutism, making the king accountable to the law.

John’s constant need for revenue was the principal factor behind the exactions and abuses that were the primary cause of Magna Charta. There was no system of taxation, in the modern sense, by which the pecuniary exigencies of the Crown could be satisfied. The only fiscal machinery available to John was that connected with the feudal system: the recognized feudal incidents and aids, as well as knight’s service, which had . . . come to mean so-called scutage – a money payment in commutation of the actual military service that had once been due.

The textbook of the constitution: Magna Charta, the Petition of right, and the Bill of Rights

King John’s Financial Excesses

To obtain the needed revenue, it was necessary to increase the customary feudal obligations. During John’s reign, according to William S. McKechnie’s standard treatise on Magna Charta, “the stream of feudal obligations steadily rose until the barons feared that nothing of their property would be saved from the torrent.” This was particularly true of scutage, which John altered from a device reserved for emergencies into a regular source of revenue. The normal rate of scutage was raised and the frequency of its imposition increased, until, with the demand for a new scutage in 1214 at an unprecedented rate, the limit of the barons endurance was reached and John was met with flat refusals to pay.

In addition, John sought to exercise his other feudal rights to their utmost limits, affecting his vassals on the point where they were most sensitive – their family interests – as well as to exact money by other means, such as efforts to impose a general property tax. His ingenuity in this respect is illustrated by the curious entry in the public record for Christmas 1204: “The wife of Hugh Neville promises the lord king two hundred chickens that she might lie one night with her husband.”

At the beginning, John’s efforts, extra-legal though they may seem to men bound by the customary feudal rules, may have appeared successful. Thus, the so-called Thirteenth [a tax on property] of 1207 brought in more than twice the ordinary revenue for a year.

John’s financial excesses led directly to the barons rebellion that resulted in the Great Charter. “He was a pillager of his subjects,” says the annalist who wrote at Barnwell priory shortly after John’s death, and, for that reason, “they forsook him, and ultimately, little mourned his death.”

The Influence of the Henry I Charter

What was it that converted the resistance to John from a petty attempt of the barons to preserve their feudal prerogatives into an epochal event in the history of freedom? The answer to this query is to be found in the very existence of the Great Charter itself. The end result of the rebellion against John was, not the mere death or deposition of a tyrant, but a written instrument laying down the fundamentals of good government as they were understood at the time. In this sense, Magna Charta is based directly upon the Coronation Charter of Henry I.

The derivation of Magna Charta from the Charter of Henry I is told dramatically in a famous tale of the contemporary chronicler Roger of Wendover. As he tells it, Archbishop Stephen Langton (whose role was crucial in the actual securing of the Great Charter) at a great service held in St. Paul’s in 1213, made the theatrical gesture of producing the then-forgotten document of the first Henry, saying, “a charter of King Henry I has now been found by which you can, if you will, recover your long-lost liberties in their pristine condition.” And, continues the chronicler, “when it had been read and understood by the barons, they rejoiced with exceeding great joy and all swore, in the archbishop’s presence, that they would fight for those liberties, if it were needful, even unto death.”

Modern scholars consider this tale apocryphal. But it is clear that, some time in 1212, the emphasis of the opposition to John shifted from one of the king’s deposition to one of a written document defining good government to be secured from the Crown. As W.L. Warren puts it, “in place of the conspiracy to murder John and set up a new king, which had been their one policy in 1212, they were now waving a charter.” This was the crucial development, and it could scarcely have occurred had there not been the precedent of Henry I’s Charter: it furnished both a safe standing-ground (for men who deemed existing custom practically immutable) and a precedent for a deliberate scheme of governmental reform.

Yet, if the Charter secured at Runnymede in 1215 may thus be said to be derived from the Henry I Charter, its importance is to be found in the fact that it goes far beyond that earlier document both in its wording and implications. Most significant were the differing circumstances in which the two charters were secured . . . Henry issued his Coronation Charter to obtain support for his accession to the throne; but the instrument itself was plainly a unilateral act on the part of the monarch – a promise by the king given as a matter grace and not as the result of any external coercion.

John’s Charter also, it is true, is in terms only a grant by a sovereign to his subjects. “John, by the Grace of God,” it starts, and, after listing his titles and his formal greeting to his subjects, goes on to state, “Know that we . . . have . . . granted to all freemen of our kingdom, for us and our heirs, of us and our heirs forever.” And, after listing the different liberties granted, it concludes, with the traditional words of royal grant: “Given by our hand, in the meadow which is called Runnymede, between Windsor and Staines, on the fifteenth day of June, in the seventeenth year of our reign.” The actual giving, by John’s hand, as effected by the imprint of his great seal.

But if the Magna Charta was thus cast in the form common to royal charters of the period – announcing in the pious legal language of the day that the king has been pleased to make certain unilateral grants, by the advice of certain counselors who are named – how different was its reality! In actuality, John’s charter was anything but a unilateral act of grace on the part of that monarch. The promises made at Runnymede were exacted by the united arms of most of the kingdom. The reasons stated for the grant of the Charter were quaintly paraphrased by Lord Coke four centuries later: “Here be four notable causes of the making of this great charter rehearsed.

1. The honor of God

2. For the health of the King’s soul

3. For the exaltation of holy church

4. For the amendment of the Kingdom

But the real reason, William S. McKechnie tells us, is to be found in the army of the rebels. The true quid pro quo which John received for the grants made by him was the renewal by his opponents of the homage and fealty that they had solemnly renounced.

Seen in this light, what can we say is the true legal nature of the Great Charter? Here, once again, is a question on which countless scholars have disagreed. As already indicated, the document’s form as a unilateral grant – a mere act of grace – on the part of the Crown does not give the answer. Bishop Stubb’s famous characterization of Magna Charta as “really a treaty between the King and his subjects” has been rejected by more-recent historians. Yet it is not so far from the truth as they suppose – if we bear in mind that, unlike the usual treaty between independent States, this was a concord worked out between ruler and subjects of the same State.

From the point of view of the modern American, such an agreement, drawn up by the different estates of the realm, and accepted by the king as the price for their continued obedience – setting limits to the powers of government – has many of the earmarks of the constitutional documents with which he is familiar. Even the charter form – a grant of franchises freely made – does not seem out of place to one cognizant of the constitutional role played by documents cast in a similar form in the American Colonies.

What is clear is that there took place at Runnymede what was essentially a bargain struck between the king and the nation. The result of this bargain was a document enumerating what were deemed the basic liberties of Englishmen of the day. This enumeration may strike us as brief, contained as it is in sixty-three short chapters; for its date, nevertheless, it is a rather lengthy document. It was natural for the men of the day to resort to the legal form invariably used for all irrevocable grants – the feudal charter authenticated by the grantor’s seal. The analogy was that of a grant of land and much of the language employed was actually that appropriate to such a grant. If the substance of Magna Charta is the establishment of a framework of good government, its form, as McKechnie puts it, “is borrowed from the feudal lawyer’s book of styles for conferring a title to landed estates.”

Strengths of the Magna Charta

In a provocative passage, historian Frederick W. Maitland asks, “Have you ever pondered the form, the scheme, the main idea of the Magna Charta? If so, your reverence for that sacred text will hardly have prevented you from using in the privacy of your own minds some such words as ‘inept’ or ‘childish,’ etc.” “If we set aside the rhetorical praise which has been so freely lavished upon the Charter,” says Winston Churchill, “and study the document itself, we may find it rather surprising.”

The Great Charter is drawn up as a feudal grant. It abounds in the technicalities of feudal law and, when these are out of the way, it seems to deal mainly with mundane and petty aspects of the relations between the king and his tenants in chief. There is in it no broad statement of principle or defined political theory. It is not what we could look for in a declaration of constitutional doctrine, but only a practical document to remedy current feudal abuses. Most surprising is that most of what we now consider the great safeguards of Anglo-American liberty are conspicuously absent from the first great charter of English liberties.

The Magna Charta Sureties, 1215: The Barons Named in the Magna Charta, 1215, and Some of Their Descendants Who Settled in America During the Early Colonial Years

Yet if we analyze the Great Charter on its own terms, there is much that is notable. It is of great significance that the custom of feudal tenure is stated as a defined component of English law, with precise limits set to royal claims in strict terms of money, time, and space. The questions of scutage, feudal reliefs, wardship, and the like are regulated in legally enforceable terms against a king who had claimed to be all but a law unto himself. More important is the fact that, though Magna Charta is primarily a feudal document directed against specific feudal abuses committed by the king against his tenants in chief, its important provisions are cast in broader terms. This is of crucial consequence, for it means that the key chapters of the charter have been capable of construction to fit the needs of later ages that sought precedents to justify establishment of the liberties we now deem basic.

The barons were concerned with their own grievances against John; but, when the original Articles of the Barons were being refined, the words “any baron” were changed, in important provisions, to “any free man (liber homo). This change in phraseology may have seemed of minor significance at the time (certainly “free man” was a technical feudal term with a much more restricted meaning than we should assign to it), yet it turned out to be of momentous importance in giving the Charter the widest application in future centuries. The wrongs done to the barons may have been the direct cause of Magna Charta, but the language used was broad enough to protect the entire nation against governmental oppression.

Two Key Provisions of the Magna Charta

History came to consider the two key provisions of the Great charter: (1) Chapter 12, under which “No scutage or aid shall be imposed in our kingdom, unless by common counsel of our kingdom;” and, (2) Chapter 39, which declares, “No free man shall be taken or imprisoned or disseised or exiled or in any way destroyed . . . save by the lawful judgment of his peers and by the law of the land.”

The first of these may have been intended by the barons only as an assertion of their right not to have their feudal obligations unilaterally altered by the king, but, without undue stretching, it can readily be construed as an admission of the right of the nation to ordain taxation.

In addition, Chapter 14 specifies how the consent of the nation is to be given. To obtain the common counsel of the kingdom to the assessing of an aid or scutage, it states, “we will cause to be summoned the archbishops, bishops, abbots, earls, and greater barons,” as well as those who hold of the king in chief below the rank of the greater barons – all this on forty days notice – and the action of those who obey the summons is to be taken to represent the action of the whole. Here we have a rough attempt, albeit in rudimentary form, to define what will become the national assembly for purposes of taxation. In it is at least the seed of the basic principle that no financial burden may be imposed upon the people without the consent of Parliament, as well as that of Parliamentary representation. If men had not yet grasped these principles in their full modern sense, and especially the essential interconnection between taxation and representation, they had at least made a start in that direction.

The role of Chapter 39 has been even more consequential in the evolution of constitutional liberty. This is true although it was probably intended merely as a written confirmation of the baronial right, recognized by feudal custom, not to be tried by inferiors, but only by men of baronial rank. The breadth of the language used has made it serve a far wider purpose. Coke, in his seventeenth-century commentary on Magna Charta, could read it as a guaranty of trial by jury to all men; as absolutely prohibiting arbitrary arrest; and as solemnly undertaking to dispense to all full, free, and speedy justice – equal to all. Even more suggestive for an American, in Coke’s commentary, the crucial phrase at the end of the chapter, “by the law of the land,” is read as equivalent to “due process of law” (a connotation that it had begun to acquire as early as the time of Edward III) – thus providing the link between the Great Charter and the most important clause of modern American Constitutions.

Of course, we read our own conceptions into the document sealed at Runnymede when we make of it an organic instrument designed in Henry Hallam’s phrase, to “protect the personal liberty and property of all freemen by giving security from arbitrary imprisonment and arbitrary spoliation.” Yet, intended so broadly or not by its framers, it can scarcely be doubted that the ultimate effect of Magna Charta, in historian Edward Creasy’s words, “was to give and to guarantee full protection for person and property to every human being that breathes English air.”

More important to the constitutional historian than the literal intent of the men of Runnymede is the meaning that future generati0ns were able to read into their words. If, as English legal historian F.W. Maitland has strikingly put it, it was possible for later men to worship such words only because it was possible to misunderstand them, the significant thing, after all, is that the words were written in a way that could be “misunderstood” so as to serve the needs ofl ater ages. Because of this, to quote Maitland again, the “document becomes and rightly becomes a sacred text, the nearest thing to ‘fundamental statute’ that England has ever had.”

The truly great thing about the Magna Charta has been what J.C. Holt terms its adaptability – the ability to mean all things to all men – to project itself into the dreams and necessities of ages that the men of 1215 could, at best, not even dimly foresee. Thus it was that a document that may itself have been only a product of feudal class selfishness was able to serve as the basis for molding the foundations of a Parliamentary monarchy in the next two centuries, as the vehicle to enable the Parliamentary leaders to resist the misdeeds of Stuart kings four centuries later, and even as the core of the rights of Englishmen asserted by American colonists against the England of the eighteenth century. “What Magna Charta has become,” says Justice Frankfurter, “is very different indeed from the immediate objects of the barons at Runnymede.” Those who look at Magna Charta with only the pedantic rigor of the thirteenth-century specialist are bound to miss the mark so far as its ultimate significance in the history of freedom is concerned.

The vital thing about the Great Charter is, not any specific provision contained in it, but its very coming into being – which alone has justified its continuing renown and significance. The mere existence of such a document, extorted from the king as it was, has been a standing condemnation of governmental absolutism. Instead, the charter itself tells us that, in Winston Churchill’s phrase, “here is a law which is above the King and which even he must not break. This reaffirmation of a supreme law and its expression in a general charter is the great work of Magna Charta; and this alone justifies the respect in which men have held it.”

Magna Charta means that the king himself is and shall be bound by the law. This was the root principle laid down at Runnymede. With it, the bridling of power by law, which is the essential theme of English constitutional history, may be said to have begun its development. What follows is intended to ensure that such principle will survive and ultimately rise paramount as the rule of law that Anglo-Americans traditionally cherish as the central and most characteristic feature of their constitutional system.



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