June 4, 2015 3:45PM

Getting King John To Sign Magna Carta Was Only Half The Battle

The very day King John pledged to uphold Magna Carta, June 20, 1215, he asked Pope Innocent III to annul it.  The pope replied, “We utterly reject and condemn this settlement and under threat of excommunication we order that the king should not dare to observe it and that the barons and their associates should not require it to be observed.”

So, John reneged on his agreement with the barons, they rebelled and formed an alliance with King Philip II of France who prepared to invade England.  Before long, the French Prince Louis entered London, and the French controlled castles throughout England.  The English Church, however, backed John and refused to crown Lewis as England’s king. 

John fled from his pursuers, but somewhere along the line he contracted dysentery and was dying.  He appointed 13 executors including William Marshal who was among the most revered knights in England.  John died on October 19, 1216,  and his nine-year-old son was hastily crowned Henry III.  Because he was under-age, Marshal formed a regency government.  Although Marshal was able to seize an important English castle from the French, the civil war was substantially stalemated.

With John gone, the rebel barons found themselves in an awkward position – their alliance with foreigners who occupied England.  Patriotic English wanted to get the French out.  Fortunately, Prince Louis was happy to collect a bribe, and soon the French went home.

Regent Marshal recognized that there was more likely to be domestic peace if some fundamental legal issues were resolved and that consequently John’s repudiation of Magna Carta must be reversed.   So Marshal reviewed the document, made some cuts, and reissued Magna Carta in late 1216.   Among the cuts was paragraph 61 about the committee of 25 barons who would monitor the king's compliance with Magna Carta and, if necessary, try to enforce it.  Perhaps less important than those words was the fact that the barons had demonstrated their willingness to use force against a tyrannical king.

The government needed more money again in 1217, and Marshall proposed a tax on the land held by knights – land that provided food and generated revenue to make possible their feudal military service.  Barons resisted, and Marshall reissued the previous version of Magna Carta with some clauses added to protect feudal privileges of the barons.

In February 1225, there were fears that England might be invaded by the French, and the government needed even more money to mount a defense.  There was much debate and eventually an agreement among the barons to pay a tax on moveable goods – provided the king reissued Magna Carta.  Accordingly, Henry III approved a version similar to that of  1217 and affirmed that he did it with his "spontaneous and free will" as well as with his royal seal.  He declared, “neither we nor our heirs will determine anything by which the liberties contained in this charter be violated or weakened.”

Over the centuries, the 1225 Magna Carta was reaffirmed dozens of times by English sovereigns.  In 1311, Edward II referred to some statutes, saying “that they be not contrary to the Great Charter.”

Other countries issued charters intended to limit  a ruler's power, too, but Magna Carta really took root, and constitutional development went furthest in England.  For instance:

  • Magna Carta appeared in dozens of compilations of English laws, invariably as the first law.  Initially it was in Latin, then French and finally English.
  • The Due Process of Law Act was adopted in 1368, during the reign of Edward III, and it said, in part, that the “Great Charter be holden and kept in all Points, and if any Statute be made to the contrary, that shall be holden for none.”
  • In 1509, King Henry VIII approved of the beheading of Edmund Dudley and Richard Empson, accused of looting taxpayers and the government.  One of the formal charges involved violating Magna Carta.

Queen Elizabeth I, near the peak of her power in 1587, wanted to establish a new judicial post in her government for one of her cronies, Richard Cavendish, so he could make a lot of money by issuing certain documents in the common law courts.  She asked administrative judges whose approval was needed.  They refused, and they were charged with disobedience.  They had to explain themselves before the queen.

According to constitutional historian Henry Hallam, the judges said they meant no offense to her majesty, but her order was against “the law of the land” – meaning principles affirmed in Magna Carta.  Consequently, they said “no one is bound to obey such an order.”  When further pressed, they pointed out that the queen herself had sworn to uphold the law of the land.  The judges believed they couldn’t obey her order without violating the laws and their oaths.  The judges cited prior practices that had been rejected, because they violated the laws of the land.  Queen Elizabeth left the chamber without commenting, and nothing more was heard about the matter.

During the 17th century, the legal scholar, judge and member of Parliament Edward Coke (pronounced “Cook”) interpreted Magna Carta as a bedrock of the English constitutional law that enabled people to resist and rebel against the tyrannical Stuart kings. 

Many critics have belittled the importance of Magna Carta by dwelling on the fact that the rebel barons were looking out for their own interests as feudal lords.  But establishing constitutional limits on a ruler with arbitrary power is always extraordinarily difficult.  Some people succeed before others, and their success is likely to make it easier for more people to follow.

Although Magna Carta didn’t derive from the principles of a “higher law,” such as were received by Moses and articulated by Sophocles, Marcus Tullius Cicero, John Lilburne, John Locke, Thomas Paine, Thomas Jefferson,  and others, from a constitutional standpoint Magna Carta had similar standing.  It didn’t come from rulers.  It couldn’t be repealed.  It was forever.