Was Magna Carta progressive?

Was Magna Carta progressive?

Magna Carta again, from 1215 And All That:

In retrospect, unlike say the American constitution that was clearly influenced by it, Magna Carta looks like a mixed bunch of ideas and demands, some timeless and others odd, petty or actually malicious. Clause 33, for instance – ‘Henceforth all fish-weirs will be completely removed from the Thames and the Medway’ – is not something you often hear quoted in legal dramas or anything an Englishman would get misty-eyed about, but at the time it was considered very important, as fish-weirs (which are used to catch fish) can mess up the navigation of rivers.

Other provisions dealt with practical and mundane things like the standardization of weights and measures, or who was obliged to build bridges and control the corn supply.

But John’s misrule is clear in most of the document, such as Clause 50, which dealt with his French friends: ‘We shall dismiss completely from their offices the relations of Girard d’Athée … namely Engelard de Cigogné, Peter, Guy and Andrew de Chanceaux, Guy de Cigogné, Geoffrey de Martigny with his brothers [and] Philip Mark, the Sheriff of Nottingham’. Then there was Clause 51, promising the expulsion of all ‘alien knights, crossbowmen, serjeants and mercenaries who have come with horses and arms to the injury of the realm’, which was running along the same lines.

Forests were also a huge gripe, with forest fines accounting for half of all state revenue; Clause 53 sought to deal with this, giving ‘respeite’ although it states that this should only be resolved when John returned from crusade (John clearly had no intention of going on crusade). Another five of the clauses dealt with reducing the power of the sheriffs.

More clauses are about money, and the king’s attempts to extract it from the barons. As with Henry I’s charter, there were aspects concerning widows; Clause 6 protected them from disparagement, which meant a marriage to someone of a lower status, and 7 and 8 were also about marriage, and debt took up 9-11 and 26-27

London was rewarded for its support with Clause 13, ensuring the city’s freedom of trade, and only one commoner witnessed the signing of Magna Carta, London Lord Mayor William Hardel. The people of London also wanted more self-government, as was increasingly becoming common for cities across western Europe (Bayonne in Gascony had become the latest to receive its own charter in April 1215). In 1191, London had also had its first elected Lord Mayor, the oddly named Henry Fitz-Ailwin de Londonestone (appropriately, his main act as mayor was encouraging the use of stone – talk about nominative determinism).

Londoners were concerned with trade, which had been affected by the recent conflict, and as always with trying to make as much money as possible, hence the rather progressive Clause 41, which stated that no foreign merchants were to be harassed, except when their countries were at war with England. And even then ‘until we… know how the merchants of our land are treated in the enemy country; and if ours are safe there, the others shall be safe in our land’.

There were also benefits for merchants and even villeins, the lowest form of life in medieval England; the Crown couldn’t snatch them, perhaps only because this would financially harm their lord.

And we could get carried away with the idea it was progressive by later standards. Clause 54, for example, states ‘no man shall be arrested or imprisoned because of the appeal of a woman for the death of anyone but her husband’. Clauses 10 and 11 are about debts owed to Jews, although it shouldn’t necessarily be seen as hostility towards Jews in themselves. In the Borat-esque nightmare world that was thirteenth-century England, Jews were basically owned by the king, so the animus here was directed at the monarch, rather than the Jews in particular. (That being said, both sides attacked the Jews when they had the opportunity.)

But the document was ground-breaking, nonetheless, and Clause 1 ends with the solemn assurance ‘… we have granted to all the freemen of our realm for ourselves and our heirs for ever all the liberties written below, to have and to hold, them and their heirs from us and our heirs’. For a king to grant in perpetuum the rights of freemen was a momentous step.

The most important clauses however were 38, 39 and 40, which deal with arbitrary accusations, and the scales of justice.

Clause 38 stated that ‘no bailiff is in future to put anyone to law by his accusation alone, without trustworthy witnesses being brought forward’. In other words, people could not be sentenced without credible witnesses.

Then comes the most important sentence in legal history, with Clause 39, which goes: ‘No freeman shall be arrested or imprisoned or dispossessed or outlawed or banished or in any way molested, nor will we go upon him nor send upon him, except by the lawful judgement of his peers and the law of the land.’ Clause 40 states that ‘To no one will we sell, to no one will we deny or delay, right or justice.’

Clause 39 and Clause 40 are still the law in England, although confusingly they are also both called Clause 29, as the 1297 reissue of the charter edited it down. Together, Clauses 38-40 form the backbone of English liberties, influencing the concept of due legal process and equality before the law. Those ideas have spread way beyond this half-island and, largely thanks to the United States’ global domination, are seen as almost universal rights.

For that we have to thank Fitzwalter, a man who himself had been declared outlaw without a trial and so demanded that it should never happen again. This would have a huge effect on what we now regard as rights in the 21st century; whether Fitzwalter would fit in at a dinner party of human rights lawyers in north London today is besides the point.

Most grating to the king, though, was the Security Clause, 61, which ensured that 25 barons would oversee the agreement and keep an eye on the king. This would effectively mean a permanent check and balance on royal power, something that a half-mad paranoid drunk like John was hardly going to be keen on.

John was a bad king, but the charter was aimed at the dynasty as a whole. Ralph of Coggeshall, in the 13th century, said Magna Carta was to end ‘the evil customs which the father and brother of the king had created to the detriment of the church and kingdom, along with those abuses which the king had added’.

The charter was agreed and on June 15 it was engrossed, the medieval term for the drawing up of legal documents; John would not have actually signed it, although nineteenth-century drawings in children’s history books always show the king doing so, often with, a stern-looking baron pointing at a piece of paper as if to say ‘sign here, pal’. Some 40 copies were engrossed and distributed across the country.

A deadline was therefore set for August 15 for the conditions on both sides to be fulfilled, at which point the rebels would hand over London. Naturally, John never went through with his promises, and probably didn’t have the slightest intention of ever doing so.

What do you think?

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