by Robert Henderson
If England’s unique political success lies in the general tenor of her society, the institutions through which it was achieved were cultivated from the thirteenth century onwards. The start of the long climb towards representative government and the neutering of monarchy may reasonably be set in the reign of John. In 1215 he was forced by many of his barons to sign a charter which granted rights to all the free men of the kingdom. This charter, the Magna Carta, was of immense significance because it formally restricted the power of the king in an unprecedented way. The pope of the day thought it such an abomination he granted John absolution for its repudiation. Perhaps for the first time since the end of the classical world, a king had been forced to acknowledge unequivocally that there could be legal limits to his power.
Long regarded as a revolutionary document by historians, the fashion amongst them in recent times has been to treat the charter as little more than as an attempt to preserve and enhance the position of the barons or to restate existing English law and custom. Of course it did that but it did much more. Had it done nothing beyond circumscribing the power of the king it would have been revolutionary, but it went far beyond that by explicitly extending rights that we consider fundamental to a free society to all free men. Perhaps its two most famous clauses show its importance in the development of the future sharing of political power:
Clause 39 No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled or deprived of the standing in any other way , nor will we proceed with force against him or send others to do so, except by judgement of his equals or by the law of the land.
Clause 40 To no one will we sell, to no one will we deny or delay right or justice.
Until the security of a man and his property are secured, there can be no sustained spreading of power, for if a king may imprison and dispossess at will no man is safe. All merely live at the will of the monarch. By providing both, Magna Carta created the necessary legal and ideological infrastructure for the political development which culminated in parliamentary government.
Perhaps the most intriguing clause of Magna Carta was the one, clause 61, which gave a committee of 25 Barons legal authority and practical power over the king. It is long clause but worth quoting in full:
Clause 61. Since, moreover, for God and the amendment of our kingdom and for the better allaying of the discord that has arisen between us and our barons we have granted all these things aforesaid, wishing them to enjoy the use of them unimpaired and unshaken for ever, we give and grant them the underwritten security, namely, that the barons shall choose any twenty-five barons of the kingdom they wish, who must with all their might observe, hold and cause to be observed, the peace and liberties which we have granted and confirmed to them by this present charter of ours, so that if we, or our justiciar, or our bailiffs or any one of our servants offend in any way against any one or transgress any of the articles of the peace or the security and the offence be notified to four of the aforesaid twenty-five barons, those four barons shall come to us, or to our justiciar if we are out of the kingdom, and, laying the transgression before us, shall petition us to have that transgression corrected without delay. And if we do not correct the transgression, or if we are out of the kingdom, if our justiciar does not correct it, within forty days, reckoning from the time it was brought to our notice or to that of our justiciar if we were out of the kingdom, the aforesaid four barons shall refer that case to the rest of the twenty-five barons and those twenty-five barons together with the Community of the whole land shall distrain and distress us in every way they can, namely, by seizing castles, lands, possessions, and in such other ways as they can, saving our person and the persons of our queen and our children, until, in their opinion, amends have been made; and when amends have been made, they shall obey us as they did before. And let anyone in the country who wishes to do so take an oath to obey the orders of the said twenty-five barons for the execution of all the aforesaid matters, and with them to distress us as much as he can, and we publicly and freely give anyone leave to take the oath who wishes to take it and we will never prohibit anyone from taking it. Indeed, all those in the land who are unwilling of themselves and of their own accord to take an oath to the twenty-five barons to help them to distrain and distress us, we will make them take the oath as aforesaid at our command. And if any of the twenty-five barons dies or leaves the country or is in any other way prevented from carrying out the things aforesaid, the remainder of the aforesaid twenty-five barons shall choose as they think fit another one in his place, and he shall take the oath like the rest. In all matters the execution of which is committed to these twenty-five barons, if it should happen that these twenty-five are present yet disagree among themselves about anything, or if some of those summoned will not or cannot be present, that shall be held as fixed and established which the majority of those present ordained or commanded, exactly as if all the twenty-five had consented to it; and the said twenty-five shall swear that they will faithfully observe all the things aforesaid and will do all they can to get them observed. And we will procure nothing from anyone, either personally or through any one else, whereby any of these concessions and liberties might be revoked or diminished; and if any such thing be procured let it be void and null, and we will never use it either personally or through another, And we have fully remitted and pardoned to everyone all the ill-will, anger and rancour that have arisen between us and our men, clergy and laity, from the time of the quarrel. Furthermore, we have fully remitted to all, clergy and laity, and as far as pertains to us have completely forgiven all trespasses occasioned by the same quarrel between Easter in the sixteenth year of our reign and the restoration of peace. And, besides, we have caused to be made for them letten testimonial patent of the lord Stephen archbishop of Canterbury, the lord Henry archbishop of Dublin and of the aforementioned bishops.
The extreme nature of the concessions the king made – he gave permission for his subjects to act with force to remedy any Royal failure to observe the charter – is a graphic example of the inherent weakness of the mediaeval monarch. King he might be, but not a tyrant because he did not have the resources to dominate utterly.
This committee was never actually formed, but the clause has great interest. Once such a council of nobles to restrict the behaviour of the king is accepted as reasonable and possible, it is not such a great leap to the idea of a larger assembly which might do the same. That idea was realised before the century was out in a Parliament.
by Robert Henderson