The Development of English Common Law: The Impact of Magna Carta

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Part 2: 1200 AD – 2020 

King Henry II was one of the most successful Kings in English history, having created the Angevin Empire (as seen below) which controlled more of France than the French King. His four sons, however, were not. Two died before he did, leaving their siblings to take up the mantle. The first, King Richard the Lionheart, is celebrated as a hero in many a story, but spent more time crusading than ruling, spending less than six months of his ten-year reign on English soil. The second, King John Lackland, is quite the opposite – the villain in the tale of Robin Hood, who ruled for his brother while he was away fighting. Yet, while often demonised by history, it is King John, who along with his father (refer to part one), revolutionised the English Law. King John’s most critical influence on the law, was the Magna Carta (Great Charter in Latin). 

The Angevin Empire under Henry II (Source: Reddit) 

The Magna Carta was a hugely important document and established two key features of English Law – the rule of law and the role of Parliament. However, it was not proposed by John or even supported by him. It was drafted by the Archbishop of Canterbury, and forced upon the King at Runnymede in 1215, after his nobles led a revolt against him. These nobles were not idealistic liberals trying to bring freedom to all but were opportunists hoping to limit the King’s power and reduce the taxation upon them. Once the revolt had ended, John ignored the Magna Carta all together, in fact, he managed to get the Pope to annul it entirely. It was reissued in 1225 by Henry III, John’s son, but only in exchange for a tax on the entire kingdom. In fact, it only rose to prominence at the end of the 16th century as part of a resurgence of early English Law, with the aim of establishing the unwritten English constitution. Despite its shaky beginnings, its significance is still felt today, due to its influence on the rule of law and the role of parliament. 

Rule of Law 

There were 63 clauses in the original charter, but only three remain fully in place today, including clauses 39 and 40, which were instrumental in establishing the rule of law.

39 – “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.’

40 – “To no one will we sell, to no one deny or delay right or justice.” 

While clause 39 has been criticised as vague, it is precisely that vagueness that has allowed the Magna Carta to become so influential. The Magna Carta has been twisted and distorted by several parliaments, in attempts to give themselves greater authority, and exert power over the monarchy. Another reason as to why it was integral to the development of the common law, was that it was truly universal – it applied to all free men equally. It held the King and the laity, as well as everyone in between to the same account. In this regard, it placed a check on royal power – there was something above the King and that was the Law. This is known as the rule of law, the idea that all members of a society, including lawmakers and judges, are all subject to the legal processes and codes. The rule of law is an idea which has become widely spread, and is present in many significant documents, including the American Bill of Rights (1791), in the 5th amendment of the US Constitution, and the UN declaration of human rights (1948). 

Signing of the Magna Carta (Source: History Extra)

Role of Parliament 

As well as guaranteeing the rights of citizens, the charter also increased the powers of the Great Council, such as in clause 12: “No aid to be levied without the permission of the Great Council”. This meant that no monarch could receive taxation from the realm, without the Council (or Magnum Concilium) allowing it. The Great Council was a group of advisors to the King, and in this period, it became more like the parliament as we know it today. The first mention of Parliament in official documents, is in 1237, and it became much more significant than the Great Council, which had previously only been called a couple times in each monarch’s reign, as it alone, had the authority to approve taxation. The parliament was split into the Houses of Lords and Commons in 1341, and under the Tudors in the 1540s, the speaker became an established position. The Tudors had an important role in making Parliament more powerful. Henry VIII, when he broke from Rome, used Parliament to give his actions authority, and in doing so, gave Parliament more power against the monarchy. The Tudors also gave England her first three queens, Lady Jane Grey, Mary I and Elizabeth I. While the first two did not rule for a long time (Lady Jane Grey only 9 days), Elizabeth did, and as a woman in a very male-dominated society, she used Parliament to once again give authority to her actions. While Elizabeth was very adept at controlling Parliament and the power she had bestowed upon them, in comparison, later monarchs were not. Parliament has used the Magna Carta several times to increases its powers and place checks on the monarchy, most notably, in the reigns of the Stuart monarchs, James I and Charles I (1603 to 1649). The Stuart monarchs believed in the Divine Right of Kings – a popular philosophy amongst continental European monarchies, in which the monarch was chosen by God, and therefore, was above the law and had the ultimate power. This brought them into conflict with parliament as they believed they could do whatever they wished. Parliament used the Magna Carta to rebel against the King. This started the English Civil War in 1642, leading to a period where there was no monarchy in England until the Restoration in 1660. Parliament gained even more power in 1688, when they invited William and Mary, the rulers of the Netherlands, to depose James II. This meant the new monarchy was entirely dependent on Parliament for their powers, and today, Queen Elizabeth II is simply a figurehead, whereas Parliament passes legislature and holds the government to account. 

The Magna Carta was a revolutionary document, that while ignored and annulled, has had effects that have lasted all the way into the 21st century. By leading to a more powerful Parliament, and a monarch that was subject to the rule of law, the charter revolutionised the English political and legal landscape. These developments shaped the common law we have today, and influenced the legal systems throughout the world. 


References

  1. Loulla-Mae Eleftheriou-Smith, Magna Carta: What is it – and why is it still important today?, The Independent, 2015
  2. Tom Bingham, The Rule of Law, Penguin Books, 2011
  3. https://www.parliament.uk/documents/Magna-Carta-and-Parliament-Booklet.pdf 
  4. http://www.fofweb.com/Electronic_Images/Onfiles/WHOFvol2_2_13.pdf 
  5. https://www.bl.uk/magna-carta/videos/the-legal-significance-of-magna-carta-today 

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