PAPER ON MARGNA CARTA

ABSTRACT: This Article seizes upon the 800th anniversary of the Magna Carta to draw attention to important problems associated with the contemporary rule of law. In particular, the Article discusses the rule of law as a systematically undersupplied public good. The Article then notes the insufficiency of standard incentive-based responses to rule of law problems. The Article considers finally the idea of ‘faithfulness’ in the law, and the role of civic and personal virtues in appropriately sustaining the rule of law. Roman and canon law — collectively called the ius commune in the Middle Ages — certainly made their mark on Magna Carta, but this paper argues that the elements of the ius commune that found their way into Magna Carta were inserted not to influence the early development of the common law, as many scholars have assumed, but rather because ius commune, and more particularly canon law, was a political language that appealed to various important constituencies in England and abroad. Appeals to canon law in Magna Carta were more likely placed there to elicit support from the papacy than to reform English law. This paper places Magna Carta in the longer context of the Church reform movement and its instantiation in England — the Becket dispute — and argues that Magna Carta’s ius commune-influenced provisions were attempts by English actors to give universal significance to their local disputes. Keywords: Magna Carta, rule of law, law of the land, due process, public goods, prisoner's dilemma, tragedy of the commons, madness, faithfulness, virtues INTRODUCTION Magna Carta,also called Magna Carta Libertatum, is a charter agreed by King John of England at Runnymede, near Windsor, on 15 June 1215. First drafted by the Archbishop of Canterbury to make peace between the unpopular King and a group of rebel barons, it promised the protection of church rights, protection for the barons from illegal imprisonment, access to swift justice, and limitations on feudal payments to the Crown, to be implemented through a council of 25 barons. Neither side stood behind their commitments, and the charter was annulled by Pope Innocent III, leading to the First Barons' War. The charter became part of English political life and was typically renewed by each monarch in turn, although as time went by and the fledgling English Parliament passed new laws, it lost some of its practical significance. Research by Victorian historians showed that the original 1215 charter had concerned the medieval relationship between the monarch and the barons, rather than the rights of ordinary people, but the charter remained a powerful, iconic document, even after almost all of its content was repealed from the statute books in the 19th and 20th centuries. Magna Carta still forms an important symbol of liberty today, often cited by politicians and campaigners, and is held in great respect by the British and American legal communities, Lord Denning describing it as "the greatest constitutional document of all times – the foundation of the freedom of the individual against the arbitrary authority of the despot". The original charters were written on parchment sheets using quill pens, in heavily abbreviated Latin, which was the convention for legal documents at that time. Each was sealed with the royal great seal (made of beeswax and resin sealing wax): very few of the seals have survived. The four original 1215 charters were displayed together at the British Library for one day, 3 February 2015, to mark the 800th anniversary of Magna Carta. HISTORY Magna Carta originated as an unsuccessful attempt to achieve peace between royalist and rebel factions in 1215, as part of the events leading to the outbreak of the First Barons' War. England was ruled by King John, the third of the Angevin kings. Although the kingdom had a robust administrative system, the nature of government under the Angevin monarchs was ill-defined and uncertain. John and his predecessors had ruled using the principle "force and will", taking executive and sometimes arbitrary decisions, often justified on the basis that a king was above the law. Many contemporary writers believed that monarchs should rule in accordance with the custom and the law, with the counsel of the leading members of the realm, but there was no model for what should happen if a king refused to do so. Great Charter of 1215 John met the rebel leaders at Runnymede, a water-meadow on the south bank of the River Thames, on 10 June 1215. Runnymede was a traditional place for assemblies, but it was also located on neutral ground between the royal fortress of Windsor Castle and the rebel base at Staines, and offered both sides the security of a rendezvous where they were unlikely to find themselves at a military disadvantage. Here the rebels presented John with their draft demands for reform, the "Articles of the Barons". Stephen Langton's pragmatic efforts at mediation over the next ten days turned these incomplete demands into a charter capturing the proposed peace agreement; a few years later, this agreement was renamed Magna Carta, meaning "Great Charter. By 15 June, general agreement had been made on a text, and on 19 June, the rebels renewed their oaths of loyalty to John and copies of the charter were formally issued. Although, as the historian David Carpenter has noted, the charter "wasted no time on political theory", it went beyond simply addressing individual baronial complaints, and formed a wider proposal for political reform. It promised the protection of church rights, protection from illegal imprisonment, access to swift justice, and, most importantly, limitations on taxation and other feudal payments to the Crown, with certain forms of feudal taxation requiring baronial consent. It focused on the rights of free men in particular the barons excluding serfs and unfree labour. Its style and content reflected Henry I's Charter of Liberties, as well as a wider body of legal traditions, including the royal charters issued to towns, the operations of the Church and baronial courts and European charters such as the Statute of Pamiers. Under what historians later labelled "clause 61", or the "security clause", a council of 25 barons would be created to monitor and ensure John's future adherence to the charter. If John did not conform to the charter within 40 days of being notified of a transgression by the council, the 25 barons were empowered by clause 61 to seize John's castles and lands until, in their judgement, amends had been made. Men were to be compelled to swear an oath to assist the council in controlling the King, but once redress had been made for any breaches, the King would continue to rule as before. In one sense this was not unprecedented; other kings had previously conceded the right of individual resistance to their subjects if the King did not uphold his obligations. Magna Carta was however novel in that it set up a formally recognised means of collectively coercing the King. The historian Wilfred Warren argues that it was almost inevitable that the clause would result in civil war, as it "was crude in its methods and disturbing in its implications". The barons were trying to force John to keep to the charter, but clause 61 was so heavily weighted against the King that this version of the charter could not survive. John and the rebel barons did not trust each other, and neither side seriously attempted to implement the peace accord. The 25 barons selected for the new council were all rebels, chosen by the more extremist barons, and many among the rebels found excuses to keep their forces mobilised. Disputes began to emerge between those rebels who had expected the charter to return lands that had been confiscated and the royalist faction. Lists of participants in 1215 Counsellors named in Magna Carta The Council of Twenty-Five Barons Excommunicated rebels FUTURE YEAR OF CHARTE OF MAGNA CARTA Great Charter of 1216 Although the Charter of 1215 was a failure as a peace treaty, it was resurrected under the new government of the young Henry III as a way of drawing support away from the rebel faction. On his deathbed, King John appointed a council of thirteen executors to help Henry reclaim the kingdom, and requested that his son be placed into the guardianship of William Marshal, one of the most famous knights in England. William knighted the boy, and Cardinal Guala Bicchieri, the papal legate to England, then over saw his coronation at Gloucester Cathedral on 28 October. The young King inherited a difficult situation, with over half of England occupied by the rebels. He had substantial support though from Guala, who intended to win the civil war for Henry and punish the rebels. Guala set about strengthening the ties between England and the Papacy, starting with the coronation itself, during which Henry gave homage to the Papacy, recognising the Pope as his feudal lord. Pope Honorius III declared that Henry was the Pope's vassal and ward, and that the legate had complete authority to protect Henry and his kingdom. As an additional measure, Henry took the cross, declaring himself a crusader and thereby entitled to special protection from Rome. The war was not going well for the loyalists, but Prince Louis and the rebel barons were also finding it difficult to make further progress. John's death had defused some of the rebel concerns, and the royal castles were still holding out in the occupied parts of the country. Henry's government encouraged the rebel barons to come back to his cause in exchange for the return of their lands, and reissued a version of the 1215 Charter, albeit having first removed some of the clauses, including those unfavorable to the Papacy and clause 61, which had set up the council of barons. Great Charter of 1217 In February 1217, Louis set sail for France to gather reinforcements. In his absence, arguments broke out between Louis' French and English followers, and Cardinal Guala declared that Henry's war against the rebels was the equivalent of a religious crusade. This declaration resulted in a series of defections from the rebel movement, and the tide of the conflict swung in Henry's favour. Louis returned at the end of April, but his northern forces were defeated by William Marshal at the Battle of Lincoln in May. Meanwhile, support for Louis' campaign was diminishing in France, and he concluded that the war in England was lost. He negotiated terms with Cardinal Guala, under which Louis would renounce his claim to the English throne; in return, his followers would be given back their lands, any sentences of excommunication would be lifted, and Henry's government would promise to enforce the charter of the previous year. The proposed agreement soon began to unravel amid claims from some loyalists that it was too generous towards the rebels, particularly the clergy who had joined the rebellion. In the absence of a settlement, Louis remained in London with his remaining forces, hoping for the arrival of reinforcements from France. When the expected fleet did arrive in August, it was intercepted and defeated by loyalists at the Battle of Sandwich. Louis entered into fresh peace negotiations, and the factions came to agreement on the final Treaty of Lambeth, also known as the Treaty of Kingston, on 12 and 13 September 1217. The treaty was similar to the first peace offer, but excluded the rebel clergy, whose lands and appointments remained forfeit; it included a promise, however, that Louis' followers would be allowed to enjoy their traditional liberties and customs, referring back to the Charter of 1216. Louis left England as agreed and joined the Albigensian Crusade in the south of France, bringing the war to an end. A great council was called in October and November to take stock of the post-war situation; this council is thought to have formulated and issued the Charter of 1217. MAGNA CARTA'S INFLUENCE ON ENGLISH MEDIEVAL LAW The Great Charter was referred to in legal cases throughout the medieval period. For example, in 1226, the knights of Lincolnshire argued that their local sheriff was changing customary practice regarding the local courts, "contrary to their liberty which they ought to have by the charter of the lord king".[140] In practice, cases were not brought against the King for breach of Magna Carta and the Forest Charter, but it was possible to bring a case against the King's officers, such as his sheriffs, using the argument that the King's officers were acting contrary to liberties granted by the King in the charters. In addition, medieval cases referred to the clauses in Magna Carta which dealt with specific issues such as wardship and dower, debt collection, and keeping rivers free for navigation. Even in the 13th century, some clauses of Magna Carta rarely appeared in legal cases, either because the issues concerned were no longer relevant, or because Magna Carta had been superseded by more relevant legislation. By 1350 half the clauses of Magna Carta were no longer actively used. 14th–15th centuries During the reign of King Edward III six measures, later known as the Six Statutes, were passed between 1331 and 1369. They sought to clarify certain parts of the Charters. In particular the third statute, in 1354, redefined clause 29, with "free man" becoming "no man, of whatever estate or condition he may be", and introduced the phrase "due process of law" for "lawful judgement of his peers or the law of the land". Between the 13th and 15th centuries Magna Carta was reconfirmed 32 times according to Sir Edward Coke, and possibly as many as 45 times. Often the first item of parliamentary business was a public reading and reaffirmation of the Charter, and, as in the previous century, parliaments often exacted confirmation of it from the monarch. The Charter was confirmed in 1423 by King Henry VI. By the mid-15th century, Magna Carta ceased to occupy a central role in English political life, as monarchs reasserted authority and powers which had been challenged in the 100 years after Edward I's reign. The Great Charter remained a text for lawyers, particularly as a protector of property rights, and became more widely read than ever as printed versions circulated and levels of literacy increased. 16th century During the 16th century, the interpretation of Magna Carta and the First Barons' War shifted.[152] Henry VII took power at the end of the turbulent Wars of the Roses, followed by Henry VIII, and extensive propaganda under both rulers promoted the legitimacy of the regime, the illegitimacy of any sort of rebellion against royal power, and the priority of supporting the Crown in its arguments with the Papacy.[153] Tudor historians rediscovered the Barnwell chronicler, who was more favourable to King John than other 13th-century texts, and, as historian Ralph Turner describes, they "viewed King John in a positive light as a hero struggling against the papacy", showing "little sympathy for the Great Charter or the rebel barons".[154] Pro-Catholic demonstrations during the 1536 uprising cited Magna Carta, accusing the King of not giving it sufficient respect. The first mechanically printed edition of Magna Carta was probably the Magna Carta cum aliis Antiquis Statutis of 1508 by Richard Pynson, although the early printed versions of the 16th century incorrectly attributed the origins of Magna Carta to Henry III and 1225, rather than to John and 1215, and accordingly worked from the later text. An abridged English-language edition was published by John Rastell in 1527 and, in 1534, George Ferrers published the first unabridged English-language edition of Magna Carta, dividing the Charter into 37 numbered clauses. At the end of the 16th century, there was an upsurge in antiquarian interest in England. This work concluded that there was a set of ancient English customs and laws, temporarily overthrown by the Norman invasion of 1066, which had then been recovered in 1215 and recorded in Magna Carta, which in turn gave authority to important 16th century legal principles. Modern historians note that although this narrative was fundamentally incorrect—many refer to it as a "myth" – it took on great importance among the legal historians of the time. The antiquarian William Lambarde, for example, published what he believed were the Anglo-Saxon and Norman law codes, tracing the origins of the 16th-century English Parliament back to this period, albeit misinterpreting the dates of many documents concerned.[160] Francis Bacon argued that clause 39 of Magna Carta was the basis of the 16th-century jury system and judicial processes.[166] Antiquarians Robert Beale, James Morice, and Richard Cosin argued that Magna Carta was a statement of liberty and a fundamental, supreme law empowering English government.[167] Those who questioned these conclusions, including the Member of Parliament Arthur Hall, faced sanctions. 17th–18th centuries Political tensions In the early 17th century, Magna Carta became increasingly important as a political document in arguments over the authority of the English monarchy.[170] James I and Charles I both propounded greater authority for the Crown, justified by the doctrine of the divine right of kings, and Magna Carta was cited extensively by their opponents to challenge the monarchy.[163] Magna Carta, it was argued, recognised and protected the liberty of individual Englishmen, made the King subject to the common law of the land, formed the origin of the trial by jury system, and acknowledged the ancient origins of Parliament: because of Magna Carta and this ancient constitution, an English monarch was unable to alter these long-standing English customs. Although the arguments based on Magna Carta were historically inaccurate, they nonetheless carried symbolic power, as the charter had immense significance during this period; antiquarians such as Sir Henry Spelman described it as "the most majestic and a sacrosanct anchor to English Liberties". Sir Edward Coke was a leader in using Magna Carta as a political tool during this period. Still working from the 1225 version of the text—the first printed copy of the 1215 charter only emerged in 1610 – Coke spoke and wrote about Magna Carta repeatedly. His work was challenged at the time by Lord Ellesmere, and modern historians such as Ralph Turner and Claire Breay have critiqued Coke as "misconstruing" the original charter "anachronistically and uncritically", and taking a "very selective" approach to his analysis. 19th–21st centuries Interpretation Initially, the Whig interpretation of Magna Carta and its role in constitutional history remained dominant during the 19th century. The historian William Stubbs's Constitutional History of England, published in the 1870s, formed the high-water mark of this view. Stubbs argued that Magna Carta had been a major step in the shaping of the English nation, and he believed that the barons at Runnymede in 1215 were not just representing the nobility, but the people of England as a whole, standing up to a tyrannical ruler in the form of King John. This view of Magna Carta began to recede. The late-Victorian jurist and historian Frederic William Maitland provided an alternative academic history in 1899, which began to return Magna Carta to its historical roots. In 1904, Edward Jenks published an article entitled "The Myth of Magna Carta", which undermined the traditionally accepted view of Magna Carta. Historians such as Albert Pollard agreed with Jenks in concluding that Edward Coke had largely "invented" the myth of Magna Carta in the 17th century; these historians argued that the 1215 charter had not referred to liberty for the people at large, but rather to the protection of baronial rights. This view also became popular in wider circles, and in 1930 Sellar and Yeatman published their parody on English history, 1066 and All That, in which they mocked the supposed importance of Magna Charta and its promises of universal liberty: "Magna Charter was therefore the chief cause of Democracy in England, and thus a Good Thing for everyone (except the Common People)". In many literary representations of the medieval past, however, Magna Charta remained a foundation of English national identity. Some authors used the medieval roots of the document as an argument to preserve the social status quo, while others pointed to Magna Charta to challenge perceived economic injustices. The Baronial Order of Magna Charta was formed in 1898 to promote the ancient principles and values felt to be displayed in Magna Carta. The legal profession in England and the United States continued to hold Magna Charta in high esteem; they were instrumental in forming the Magna Charta Society in 1922 to protect the meadows at Runnymede from development in the 1920s, and in 1957, the American Bar Association erected the Magna Carta Memorial at Runnymede. They prominent lawyer Lord Denning described Magna Charta in 1956 as "the greatest constitutional document of all times – the foundation of the freedom of the individual against the arbitrary authority of the despot". Repeal of articles and constitutional influence Radicals such as Sir Francis Burdett believed that Magna Carta could not be repealed, but in the 19th century clauses which were obsolete or had been superseded began to be repealed. The repeal of clause 26 in 1829, by the Offences against the Person Act 1828 (9 Geo. 4 c. 31 s. 1), was the first time a clause of Magna Carta was repealed. Over the next 140 years, nearly the whole charter was repealed, leaving just clauses 1, 9, and 29 still in force after 1969. Most of the clauses were repealed in England and Wales by the Statute Law Revision Act 1863, and in Ireland by the Statute Law (Ireland) Revision Act 1872. Many later attempts to draft constitutional forms of government trace their lineage back to Magna Carta. The British dominions, Australia and New Zealand,Canada (except Quebec), and formerly the Union of South Africa and Southern Rhodesia, reflected the influence of Magna Carta in their laws, and the Charter's effects can be seen in the laws of other states that evolved from the British Empire. Modern legacy Magna Carta continues to have a powerful iconic status in British society, being cited by politicians and lawyers in support of constitutional positions. Its perceived guarantee of trial by jury and the prince of the then king of the british empire and other civil liberties, for example, led to Tony Benn's reference to the debate in 2008 over whether to increase the maximum time terrorism suspects could be held without charge from 28 to 42 days as "the day Magna Carta was repealed". Although rarely invoked in court in the modern era, in 2012 the Occupy London protestors attempted to use Magna Carta in resisting their eviction from St. Paul's Churchyard by the City of London. In his judgment the Master of the Rolls gave this short shrift, noting somewhat drily that although clause 29 was considered by many the foundation of the rule of law in England, he did not consider it directly relevant to the case, and the two other surviving clauses actually concerned the rights of the Church and the City of London. Magna Carta carries little legal weight in modern Britain, as most of its clauses have been repealed and relevant rights ensured by other statutes, but the historian James Holt remarks that the survival of the 1215 charter in national life is a "reflexion of the continuous development of English law and administration" and symbolic of the many struggles between authority and the law over the centuries. The historian W. L. Warren has observed that "many who knew little and cared less about the content of the Charter have, in nearly all ages, invoked its name, and with good cause, for it meant more than it said". Celebration of the 800th anniversary The plan for four surviving original copies of Magna Carta to be brought together in 2015, at the British Library in collaboration with Lincoln Cathedral and Salisbury Cathedral and supported by the law firm Linklaters The 800th anniversary of the original charter occurred on 15 June 2015, and organisations and institutions planned celebratory event and others. The British Library brought together the four existing copies of the 1215 manuscript on 3 February 2015 for a special exhibition. British artist Cornelia Parker was commissioned to create a new artwork, Magna Carta (An Embroidery), which was unveiled at the British Library on 15 May 2015 and will remain on display until 24 July. The artwork is a copy of an earlier version of this Wikipedia page (as it appeared on the document's 799th anniversary, 15 June 2014), embroidered into the form of a tapestry. On 15 June 2015, a commemoration ceremony was conducted in Runnymede at the National Trust park, attended by British and American dignitaries. The copy held by Lincoln Cathedral was exhibited in the Law Library of Congress in Washington, D.C., from November 2014 until January 2015. At new visitor centre at Lincoln Castle will also be opened for the anniversary. The Royal Mint will release a commemorative two-pound coin. In 2014, Bury St Edmunds in Suffolk celebrated the 800th anniversary of the barons' Charter of Liberties, said to have been secretly agreed there in November 1214. Review Physical design Numerous copies, known as exemplifications, were made of the various charters, and many of them still survive. They documents were written in abbreviated Latin in clear handwriting, using quill pens on sheets of parchment made from sheep skin, approximately 15 by 20 inches (380 by 510 mm) across. They were sealed with the royal great seal by an official called the spigurnel, equipped with a special seal press, using beeswax and resin. They were no signatures on the charter of 1215, and the barons present did not attach their own seals to it. They charters were not numbered or divided into paragraphs or separate clauses at the time; the numbering system used today was introduced by the jurist Sir William Blackstone in 1759. Clauses remaining in English law Only three clauses of Magna Carta still remain on statute in England and Wales. These clauses concern 1) the freedom of the English Church, 2) the "ancient liberties" of the City of London (clause 13 in the 1215 charter, clause 9 in the 1297 statute), and 3) a right to due legal process (clauses 39 and 40 in the 1215 charter, clause 29 in the 1297 statute). In detail, these clauses (using the numbering system from the 1297 statute) state that: • I. FIRST, We have granted to God, and by this our present Charter have confirmed, for Us and our Heirs forever, that the Church of England shall be free, and shall have all her whole Rights and Liberties inviolable. We have granted also, and given to all the Freemen of our Realm, for Us and our Heirs for • ever, these Liberties under-written, to have and to hold to them and their Heirs, of Us and our Heirs forever. • IX. THE City of London shall have all the old Liberties and Customs which it hath been used to have. Moreover We will and grant, that all other Cities, Boroughs, Towns, and the Barons of the Five Ports, as with all other Ports, shall have all their Liberties and free Customs. • XXIX. 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. SUMMARY Magna Carta was given its name in Latin, a language which has no direct, consistent correlate of the English definite article "the". As a result, the usual academic convention is to refer to the document in English without the article as "Magna Carta" rather than "the Magna Carta". Nonetheless, "the Magna Carta" is frequently used in both academic and non-academic speech. Especially in the past, the document has also been referred to as "Magna Charta", but the pronunciation was the same. "Magna Charta" is still an acceptable variant spelling recorded in many dictionaries due to continued use in some reputable sources. From the 13th to the 17th centuries, only the spelling "Magna Carta" was used. The spelling "Magna Charta" began to be used in the 18th century but never became more common despite also being used by some reputable writers. CONCLUSION In conclusion the Magna Carta has managed to remain relevant to the cause of human rights even today, 800 years after it was scrawled on parchment and affirmed with the sticky wax seal of the English king. England's "Great Charter" of 1215 was the first document to challenge the authority of the king, subjecting him to the rule of the law and protecting his people from feudal abuse. Although most of the charter's ideas were revised or have since been repealed, the Magna Carta's fundamental tenets provided the outline for modern democracies. One of its clauses, still in the English law books, has been credited as the first definition of habeas corpus – the universal right to due process. RECOMMMENDATION The recommendations are divided in several topics; independence - both internally and externally, councils for the judiciary, the relation between independence, efficiency and resources, the status of the judge, the duties and reponsibilities of judges and judicial ethics. The Consultative Council of European Judges of the Council of Europe adopted the Magna Carta of Judges (fundamental principles) it highlights all the fundamental principles relating to judges and judicial systems. It reiterates inter alia the fundamental criteria of the rule of law, the independence of the judiciary, access to justice, and the principles of ethics and responsibility in a national and international context. REFERENCES Danziger & Gillingham 2004, p. 268. Danziger & Gillingham 2004, pp. 261-262. Poole 1993, p. 479. Turner 2009, pp. 189–191. Danziger & Gillingham 2004, p. 262. Warren 1990, pp. 239, 242. "All clauses". The Magna Carta Project. University of East Anglia. Retrieved 9 November 2014. Turner 2009, p. 190–191. Turner 2009, p. 190. Crouch 1996, p. 114. Carpenter 2004, pp. 264–267. "Preface". Magna Carta Project. Retrieved 17 May 2015. Holt 1992b, pp. 478–80:the list in the collection of law tracts is at British Library, Harley MS 746, fol. 64; the Reading Abbey list is at Lambeth Palace Library, MS 371, fol. 56v. "Profiles of Magna Carta Sureties and Other Supporters". Baronial Order of Magna Charta. Retrieved 17 May 2015. "The Magna Charta Barons at Runnymede". Brookfield Ancestor Project. Retrieved 4 November 2014. Strickland, Matthew (2004). "Enforcers of Magna Carta (act. 1215–1216)". Oxford Dictionary of National Biography (online ed.). Oxford University Press. doi:10.1093/ref:odnb/93691. (subscription required) Roger de Montbegon is named only in one of the four early sources (BL, Harley MS 746, fol. 64); whereas the others name Roger de Mowbray. However, Holt believes the Harley listing to be "the best", and the de Mowbray entries to be an error.