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Stefan's Florilegium

Magna-Carta-2-art



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Magna-Carta-2-art - 1/15/97

"Those Revolting Barons, Part II: The Barons' War and Magna Carta" by Nicolaa
de Bracton of Leicester.

NOTE: See also the files: Magna-Carta-1-art, Magna-Carta-man, parchment-msg,
seals-msg, Paleo-Scribes-art, p-lawyers-msg.

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NOTICE -

This article was submitted to me by the author for inclusion in this set
of files, called Stefanıs Florilegium.

These files are available on the Internet at:
http://www.florilegium.org

Copyright to the contents of this file remains with the author.

While the author will likely give permission for this work to be
reprinted in SCA type publications, please check with the author first
or check for any permissions granted at the end of this file.

Thank you,
Mark S. Harris
AKA: Stefan li Rous
stefan@florilegium.org
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Those Revolting Barons, Part II: The Barons' War and Magna Carta
--Nicolaa de Bracton of Leicester

As I detailed last month, relations between King John and his barons had
grown increasingly strained, as John attempted to raise money for his military
expeditions through taxation and continued in controversy with the Church over
his appointments to bishoprics. One of these men, Peter des Roches, Bishop of
Winchester, was effectively ruler of England while John campaigned against
Philip Augustus in France. When John returned in 1214, his dreams of regaining
Normandy abandoned, he found the barons had grown even more hostile in the face
of des Roches' de facto rule. Here is one of the first instances of what would
become a familiar refrain in the thirteenth century--that the king gave too much
power to foreign favourites; des Roches was not born on English soil, but
hailed from the Touraine. The barons now feared that the bureaucracy and
administrative power instituted by Henry II could be used--and abused--and thus
could further erode their power in favour of the king's. The barons gradually
sorted themselves into two parties--a group of moderates willing to negotiate,
and another group who would eventually rise in revolt. John countered the move
by taking the Cross of a Crusader--which brought him even further under Papal
protection. The Great Charter was the result of mediation by the moderates
between the rebel extremists and the King.

The crucial question would become whether the king was above the law--or,
like all others in England, bound to it, even when he himself had made it? The
issuance of the Charter confirmed that in England at least, the latter was to be
true. John, however, probably saw the signing of the Charter at Runnymede in
1215 as only a stopgap measure, designed to buy time enough to gain back the
momentum and crush the rebellious barons--especially those in the north, which
had been particularly exploited by John in the matters of remarriage of widows,
wardships, and often enormous fees required before a baronial heir could inherit
property. Many of these particular abuses were forbidden outright by the
Charter, as we shall see momentarily, as was the seizure of property or judgment
without consultation, but the northern barons had no reason to trust John, and
rightly so, since John promptly wrote to the Pope to get the Charter annulled.
The Pope's favourable response and the excommunication of the rebel barons led
to outright civil war; the barons employing French mercenaries to aid their
cause. In the midst of this, John died on October 18, 1216.

It is difficult to say whether the Charter would have ever survived had
John not died when he did. However, his death left a nine year old boy, Henry
III, as King--and a group of loyalist moderate barons who had signed the Charter
in control. These barons--led by William the Marshal, now the Earl of
Pembroke and aided by the papal legate Guala and Peter des Roches, Bishop of
Winchester, now took steps to ensure that a moderate position would be assumed.
The Charter was reissued in 1216, many of its more radical passages excised, but
the essential grant of liberties largely intact. After a royalist victory at
Lincoln in 1217 and the excommunication of King Louis of France by a sympathetic
Pope encouraged the French mercenaries to leave England, the regents made peace
with the rebel barons, further fine-tuning the Charter and issuing a separate
Charter of the Forests to deal with the complaints over the extension of forest
law. What would eventually become the definitive version of the Charter was
issued in 1225.

The text of Magna Carta is available elsewhere. I would draw your attention to
some of its salient chapters:

--Articles 2-6 were designed to remedy the abuses of wardship and to end the
high fines demanded by past Kings in favour of the ancient set relief (or fee)
of £100 for the barony of an earl or 100s for a knight's fee. Guardians of
wards were bound to maintain the property of the ward and not to destroy or
exploit it, and marriages were not to be contracted without the consent of the
family of the ward.

--Articles 7-8, similarly, were designed to stop the pressure applied to a widow
to remarry (which usually took the form of refusing to settle her dower--the
portion of her husband's property, usually 1/3, of which she was granted use
until her death.

---Article 12 restricted the causes for which scutage could be levied "without
common counsel" of the realm (ransom of his person, the knighting of his eldest
son or the first marriage of his eldest daughter); this was directed at John's
excessive taxation for his campaigns on the Continent. Article 14 continues
this by naming who would be summoned to obtain counsel--archbishops, bishops,
abbots, earls, and greater barons. Article 15, interestingly enough, places the
same restrictions on obtaining aid--ransom, the knighting of the eldest son or
the first marriage of the eldest daughter-- on all others in England, thus
ensuring that the King was not placed under more restriction than other nobles.
Continuing this trend, article 52 establishes a council of 25 barons to judge in
matters of disputed land claims; the role of the council as a distraint upon
the King is further explained in article 61 (although it is clear here that the
council is truly only empowered to act in the dispute between John and the
barons and is not given further jurisdiction). These three articles, naming
councils of greater nobles to approve certain matters and to act as a check
against extension of royal power beyond that stipulated elsewhere in the Charter
and in written law, is often seen as the seed from which the institution of
Parliament would eventually grow under Edward I. However, it is important to
note that Magna Carta did not result in the establishment of permanent councils
of barons; these councils remained largely arbitrary through the reign of Henry
III and were one of the issues in the baronial revolt of 1258-65.

--Article 13 confirmed the liberties of London (which had sided with the rebels)
along with those of other cities and towns. These liberties, of course, placed
restrictions on royal power within cities and towns and allowed city and town
officials considerable jurisdiction within their own walls.

--Articles 17-32 all concern property law. 17-19 set out standards for courts
of common pleas and assizes, while 20 set limits on fines and 21 ensured that
earls and barons could only be judged and have fines assessed by their peers.
Most of the rest ensured that property could not be arbitrarily seized. Once
again, these addressed many specific abuses of John.

--What is often called the "meat" of the charter is contained in Articles 38-40:

Article 38 forbid trial by unsupported allegation, without credible witnesses;

article 39 forbid imprisonment, disseisment, outlawry, or exile without judgment
by one's peers or by the "law of the land". Article 40 provided that for no
person would justice be sold or delayed. These three provisions, along with
those concerning land tenure, probably had more direct effect on the average
Englishman than did the entire rest of the charter. (It is, however, to be
noted that these provisions still applied only to "free" men.) These three
articles continued the trend towards standardization of legal procedure that I
noted last week and would have long-term effects on the fair and universal
application of royal justice. Article 45 is related to these, in that it ensured
that judges and others with judicial jurisdiction should actually know the laws;
this probably served to continue the trend towards a professional judiciary.

Articles 41 and 42 allowed for the freedom of merchants to travel without
excessive taxation.

--Articles 44, 47, and 48 "rolled back the clock" on forestation of lands,
removing all which had been forested by John and calling inquiries into abuses
of forest law. They would later be supplemented by the Charter of the Forest of
1217, which would further ensure that forests, too, would be subject to
standardized laws and courts.

--Articles 50 and 51 provided for the dismissal of some of the king's "foreign
favourites", along with the removal of foreign mercenaries--very clearly an
article targeted directly at John. Articles 51-53 likewise address
specifically Welsh and Scottish grievances against John.
Finally, article 60 binds all overlords to extend the same liberties to their
vassals as the King has extended to them. Being essentially a feudal contract,
the Charter was to be observed by all parties if it was to work.

As I think you can see, much of the charter is concerned with the relief of very
specific grievances against King John, although many of the articles had a long-
term significance likely not foreseen by either John or the barons. Although
the council of barons stipulated in the charter did not actually coalesce into a
permanent council, its inclusion in the charter ensured that in the future,
kings who attempted to rule arbitrarily would be called into question, as
happened in the second baronial revolt of 1258-65--which likewise resulted in a
royalist victory, but also in a further evolution of these principles and the
beginnings of the extension of privilege of consultation beyond barons to simple
knights. These people were regularly summoned after the royalist victory in
1265 until Henry's death in 1272 to advise on important matters of state, mostly
concerning the settlements of property claims of the families of the rebels.
Edward I began the practice of summoning these people twice yearly at what was
now being called "parliament" to deal with major issues such as taxation and
foreign treaties, clearly recognizing the importance of cultivating the support
of the barons in order to accomplish his own objectives. Magna Carta did not
create Parliament--but it did make it possible.

Bibliography:
Berman, Harold J. Law and Revolution: The Formation of the Western Legal
Tradition. Cambridge, MA: Harvard University Press, 1983.

Harding, Alan. England in the Thirteenth Century. Cambridge: Cambridge
University Press, 1993.

Holt, J.C. Magna Charta Cambridge: Cambridge University Press, 1965.

Powicke, Maurice. The Thirteenth Century: 1216-1307. Oxford: Oxford
University Press, 1962.
------
Copyright 1996 by Susan Carroll-Clark, 53 Thorncliffe Park Dr. #611,
Toronto, Ontario M4H 1L1 CANADA. Permission granted for
republication in SCA-related publications, provided author is credited
and receives a copy.

If this article is reprinted in a publication, I would appreciate a notice in
the publication that you found this article in the Florilegium. I would also
appreciate an email to myself, so that I can track which articles are being
reprinted. Thanks. -Stefan.

<the end>


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