Last year the world (especially the English-speaking legal world) celebrated the 800th anniversary of the granting by King John of England of the Magna Carta in Runnymede near London on June 15th, 1215. The Anglo-Norman nobles detested the king, as much for his incompetence in war as for his arrogance. They were now threatening civil war. The king was weak and unpopular. He was forced to agree to the nobles’ many demands. They included merchants’ rights, fishery rights and many other feudal rights that have no relevance today. But crucially, the charter included the right of freemen to trial by a jury of their peers and limits on the king’s power over them.
David Starkey is well known for his television programmes as well as for his books, especially on Tudor England. His focus here is primarily on the machinations behind the scenes and the differences between the original Magna Carta of 1215 and the subsequent Magna Carta granted in November 1216 following King John’s death the month before. The story is fascinating, not least because of the role played by William Marshal, Earl of Pembroke, Regent to the nine-year-old King Henry III.
Starkey’s book is scholarly yet accessible. Analytical yet clear, it is a pleasure to read.
The story of the Magna Carta is an example where the law of unintended consequences comes into play. What was a localised squabble and an ad hoc solution could have remained just that. But circumstances ensured that that was not to be. After granting the Magna Carta in June 2015, King John then appealed to Pope Innocent III in Rome, who declared the charter to be “not only shameful and demeaning but also illegal and unjust” since John had been coerced, and accordingly the charter was “null, and void of all validity forever”.
The pope ordered the king not to observe the Magna Carta and the barons not to enforce it under threat of excommunication, thus emboldening King John to fight back. The papal intervention, the subsequent war between King John and the nobles, and the deaths of King John and the pope the following year combined to set the scene for the granting of a new Magna Carta under the regency – and this time by agreement and not by coercion.
By setting limits on the king’s powers over the nobles, the historical actors were unwittingly over those two years laying the foundation for the principle that no person, not even the king, is above the law and for the concept of the rule of law.
Chapters 39 and 40 are worth restating:
“No Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land. We will sell to no man, we will not deny or defer to any man either Justice or Right.”
There is an Irish connection to the Magna Carta. One of King John’s advisers was William Marshal, a social climber if there ever was one. Landless and without money but a great swordsman and jouster, he had married well, as they say. In fact, he married Aoife and Strongbow’s daughter, Isabel de Clare. He was 43 at the time and she was 17. He eventually succeeded to the title of Earl of Pembroke, with vast estates in England and Ireland. By now he was 70 years old and appointed Regent for the young king, Henry III, when King John died in 1216. He had sided with King John and was his principal lay negotiator the year before. But he was politically astute and realised that the situation had changed, so he worked for a compromise, which was the Magna Carta of 1216.
For good or ill, the transformed Charter of 1216 removed many of the radical provisions that had curtailed monarchical power. But it left untouched articles 39 and 40. They would be invoked by Thomas Jefferson in 1776, the United Nations in the Universal Declaration on Human Rights in 1948 and Nelson Mandela at his trial in 1961. During the American Revolution the seal of the state of Massachusetts depicted a militiaman with a rifle in one hand and the Magna Carta in the other.
In England it was invoked by parliament in its conflicts with the Stuarts. In 1628 the Petition of Right, which limited royal power, made explicit reference to the Magna Carta.
According to the author, the Magna Carta has been cited more than 400 times in US Supreme Court opinions. In 2008, in Boumediene v Bush, Justice Kennedy wrote the opinion of the court, affirming that the right to know the reason for one’s confinement is fundamental to the rule of law, even in wartime. He drew a straight line from Magna Carta to the right of habeas corpus, stating that the history of English law shows that “gradually the writ of habeas corpus became the means by which the promise of the Magna Carta was fulfilled”.
The importance of the Magna Carta for Americans is further demonstrated by the “Records of Rights” exhibit at the National Archives in Washington, DC. The Magna Carta is presented as the precursor to the freedoms promised in other documents on display: the Declaration of Independence, the United States Constitution, and the Bill of Rights.
William Marshal ensured that a special Irish edition of the reformed Magna Carta was granted and sent to Ireland in 1217. A later copy of it can be viewed at Christchurch Cathedral in Dublin. Irish people will be relieved to note that in 2007 the Oireachtas, in tidying up the statute book, repealed the 1215 version in its entirety but retained chapter 45, which reads:
“We shall not make justices
Legal scholars will like the side-by-side comparison of the 1215, 1216 and 1225 Charters. For everyone else there are beautiful medieval images and illustrations of different Magnae Cartae and the persons associated with them. One such depicts King John, plume in hand, as very reluctantly signing the Magna Carta at the insistence of the barons. This is wrong on two counts, as the author points out. Firstly, the Magna Carta was sealed, not signed. Secondly, King John probably couldn’t write his name – in English, French or Latin, which is the language of the Magna Carta.
I heartily recommend this book.
Frank MacGabhann is a lawyer and commentator
