(This is Part 2 of a series | Part 1)
“The liberties which you demand, since they were extorted by force, ought not by right be observed.” William Briwere, 1224
When in history did kings and queens cease to be rulers and become mere figureheads?
Actually, never. They were always figureheads, and as of 2015 they still rule. But for more than 1,000 years their power has been eroding, due to a large annoyance known as the rest of us collectively saying: we want to be in charge too!
In 1215, a tiny sliver of the rest of us, known as the English-landed nobility, wrested a share of liberties from their beloved line of kings in the form of the Magna Carta. Between 1215 and 1423 the Great Charter was confirmed no less than 32 (and as many as 45) times. That’s what history says – but what does “confirmed” mean? Once a statute is on the books, it remains law unless it’s amended or repealed, right?
Apparently, not in medieval times. The kings did not want limits on their authority to rule. They wanted to conquer foreign lands, build their empires, and collect from their subjects taxes, tallage, tributes, fees, fines, gifts, aids, levies, royalties, seizures, scutage, socage, burgage – in a word, money. Only begrudgingly did they yield to any limitations on their powers, and only when compelled to do so by circumstances. The above quote by loyal subject William Briwere captures the typical royal attitude to demands of the nobility.
No, the kings of England did not implement the articles of the Great Charter in due course. And the many “confirmations” reflect that fact. Advances in law came at times when the king was weakened by external circumstances: foreign wars, crusades, reclaiming lost territory from France, disputes with Scotland, Ireland and Wales – all this costed money, and money needed to come from the king’s subjects, especially from the several hundred wealthy nobles designated as barons. When the king needed to refill his war chest, the barons would see fit to bring forth new demands that the king would grant in exchange for their support.
In 1225 John’s son King Henry III (1216-1271), dealing with a French plot to annex his remaining continental lands, issued a levy against all English freeholders. In order to secure this funding, he reissued the Magna Carta, now edited down to 37 chapters, many of the original 63 pertaining only to John’s (mis)rule.
In 1237, Henry requested a new tax to fund the expensive marriages of himself and his sister. In exchange, the lords demanded a new confirmation of the Charter, which around this time was gaining clarification through the addition of supplemental legislation.
In 1251, and again in 1253, Henry requested aid from his council, which was granted in exchange for republication of the Charter. This was 700 years before online publication of statutes, 550 years before industrial-scale printing, and 180 years before Gutenberg introduced hand-operated printing to the west. So the creation of a small number of physical copies was far more significant than, say, a complete statutory revision would be today. For the law to exist it needed to be (with the king’s confirmation) written out long-hand, copies laboriously transcribed, posted in select public places, and read aloud to mostly illiterate audiences.
With each confirmation, the law became more defined, individual issues were worked out and clarified, and the Charter became more entrenched in people’s minds. Expectations, especially of the king, grew, as did the responsibility of the upper class to take charge and provide good rule, whatever that meant in the thirteenth century.
Like John, Henry III was a weak king. A poor military strategist, he lost all his French territories and was humiliated in a series of failed continental wars on behalf of the church. Somehow, his reward for more than a decade of papal service was a massive debt to the See of Rome.
In 1258 Henry returned to England, defeated. He held council to ask for more aid and was greeted with a long list of complaints. Although capable of asserting arbitrary and brutal power at times, concession was his main strategy when confronted with demands by his subjects in the form of councils and parliaments. And as with John, his weakness emboldened his barons.
Thus in 1259, under the leadership of Henry’s son-in-law Simon de Montfort, the English nobility came together in the name of the Great Charter and hammered out the Provisions of Oxford, which proposed a radical new form of government and was, in retrospect, England’s first constitution.
What were the radical proposals? A 24-member council, 12 of whom were appointed by the king, were to select four among them (two of the king’s appointees and two others). The four-person council would then create a 15-member Privy Council to advise the king and oversee governance. This council would in turn be monitored by a new entity called “Parliament.”
Moderate as it may sound, this program was far too radical for the thirteenth Century, and a second baron’s war resulted. At this point, Henry wisely stepped aside, and placed his son, the future king Edward I, in charge of his armies and his kingdom. But by May of 1264 Simon de Montfort was in control of England, with Henry and Edward held captive, but still officially rulers (as the English people would never recognize a government without their own king as its head). He compelled Henry and Edward to confirm the Magna Carta, and proceeded with his aggressive program to work out the Charter’s implicit democratic liberties.
Dual power is a curious thing. Simon’s rule was founded on the people’s frustrations with royal incompetence. But with the crisis over and stability somewhat restored, popular support swung back in the Crown’s favour. In May 1265, Edward escaped and quickly led a successful counter-revolution. 200 years ahead of his time, the progenitor of parliamentary democracy died in battle.
Henry III was a weak king, and capitulation was his way – thus the many confirmations of the Charter during his reign. He remained “king” until his death in 1272, but for his last 12 years he was a mere figurehead supporting Edward’s rule, which lasted until 1307. What was to become of the Magna Carta under a strong king?
Edward was strong indeed, a brilliant military strategist and capable statesman, but he was not as strong as the combined influence of the Great Charter and the revolutionary legacy of Simon de Montfort. Alternatively, Edward was strong enough to act on Simon’s ideas and make them his own. Simon was dead but his plan for governmental reform continued without him, albeit in more moderate form. The Dictum of Kenilworth re-established royal authority, and expanded the rights of the Magna Carta.
The reign of Edward I brought great growth in the statute law and the role played by Parliament. Each statute was an implementation and extension of some part of the Great Charter or the Forest Charter. The Court of King’s Bench also dates from this time, and trial by jury was implemented. The Inns of Court was created, and thus the legal profession. In effect, Edward’s reign extended the feudal age in England while providing the legislative framework to end it. The throne maintained many of its historical privileges, but must now share governance with new legal institutions that still exist in the 21st Century.
But despite Edward I’s accomplishments, he was vulnerable to the same kingly predicaments that beset his predecessors. Much like his grandfather John, 85 years before, in 1297 Edward was at war with France, Wales & Scotland (remember Mel Gibson’s Braveheart?), and in a protracted dispute with the papacy. I feel like the ending of this chapter has already been written, but let us include it for good measure: Edward tried to raise taxes to fund his military campaigns, and his lords, taking advantage of the king’s weakened position, offered their support in exchange for a confirmation of the Magna Carta.
Barrington, Boyd C. The Magna Charta and other Great Charters of England. (Littleton, CO: Rothman & Co., 1993)
Breay, Claire. Magna Carta: Manuscripts and Myths. (London: The British Library, 2002)
Edward I of England. (https://en.wikipedia.org/wiki/Edward_I_of_England#Early_ambitions)
Harris, Carolyn. Magna Carta and its Gifts to Canada: Democracy, Law and Human Rights (Toronto: Dundurn, 2015)
Holt, JC. Magna Carta. 2d ed (Cambridge: Cambridge University Press, 1992)
Howard, A.E. Dick. The Magna Carta: Text and Commentary. Carlottesville: University Press of Virginia, 1964.
Provisions of Oxford. (https://en.wikipedia.org/wiki/Provisions_of_Oxford)
Simon de Montfort, 6th Earl of Leicester. (https://en.wikipedia.org/wiki/Simon_de_Montfort,_6th_Earl_of_Leicester)
Stringham, Ray. Magna Carta: Fountainhead of Freedom. (Rochester, NY: Aqueduct, 1956)
Swindler, William F. Magna Carta: Legend and Legacy. (Indianapolis: Bobs-Merril Co., 1965)