The Elephant in Parliament: The Magna Carta in 1628 & 1642 (Throwback Thursday)

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magnacarta1By Ken Fox

(Part 3 of a series | Part 1  | Part 2)

“Every member of the House being a counsellor, should have three properties of the elephant: first, that he hath no gall; secondly, that he is inflexible and cannot bow; thirdly, that he is of a most ripe and perfect memory.”

As an exhausted toddler exhibits a burst of energy before bedtime, so did the English Crown kick up a mighty fuss in the last days of its ultimate prerogative, its pre-eminence above the law of the land. That last burst of energy was named Charles I – but first let’s, in broad strokes, fill in the three intervening centuries.

The reign of Edward I (1272 – 1306) brought many new laws and institutions, including Parliament, which placed checks upon the king’s power. Under his grandson, Edward III (1327 – 1377) the charter received new interpretations called the “Six Statutes” that facilitated the break-down of the feudal system.

The Great Famine (1315 – 1317) and the Black Death (1348 – 1349) catastrophically reduced the population and created labour shortages and rising wages, which disempowered the landed estates. In 1381 there was a Peasants’ Revolt, which was suppressed, but not without permanent damage to the psyche of the ruling classes. In 1354 the scope of the Charter was expanded to include “all men” (rather than “free men”), and in 1400 it was expanded again to include “ladies of great estate.”

Movable type was invented around 1450, the textiles industry expanded, as did manufacturing in general, and property laws were altered to facilitate, and sometimes inhibit, the growing industry and the rising mercantile class. Serfs, empowered by the high demand for labour, left their feudal masters and moved to villages, or acquired their own land and became peasant farmers. The new arrangements stoked innovation’s fires, and the new mercantile economy created social mobility, and new classes of people with new ideas.   

The new economy picked up traction and stabilized, the population started to grow back, and under the reign of the Tudor dynasty (1485 – 1603) there was a long period of peace. In the public mind, the monarchs were loved or at least respected, and the Magna Carta, unneeded, was forgotten. But for legal scholars, it was remembered, stored safely in statute books, a loaded gun to be taken out and brandished when the occasion arose.

The occasion arose in 1620, when King James, needing money, reconvened Parliament after a decade of inactivity, during which legislation had fallen badly behind the rising world of commerce and trade. Parliament and the king differed sharply on the issue of trade patents, which were commercial monopolies granted by the king to his favourite subjects, a sort of missing link between medieval grants of lavish estates and modern corporate subsidies. The patentees not only were able to push middle and lower class craftsmen out of the market, but had the power to enforce their patents with imprisonment.

Wielding the Magna Carta (Article 39), Sir Edward Coke (pronounced “cook”) attempted to pass a statute prohibiting imprisonments under private patent. To our modern, liberal way of thinking, this attempt should have led to one or more parliamentary debates on imprisonment, followed by a vote. Instead, James responded paternalistically, demanding that Parliament grant him war money (“advancing the nation’s interest abroad”) and shut up about the conduct of the Crown. A great protest ensued, in which Parliament invoked a political strategy that remains popular to this day – it asserted new and (at the time) radical democratic political liberties by pretending they had always existed in the manner of an “ancient and undoubted birthright and inheritance of the subjects of England.” The king reacted (presumably without self-conscious irony) by imprisoning Coke and other problematical Parliamentarians, as well as confiscating Coke’s papers, including an epoch-shifting commentary on the Magna Carta.

The epoch was indeed shifting. The Church of England had renounced papal authority in the 1530s, and the English monarchy, freed of service to Rome, grew in power. In the meantime the more radical reformist movement of puritanism had taken hold of a large part of the populace. Although England was united in opposition to “popery,” the Stuart kings (beginning with James) attempted to effectively fill that holy role by proposing the “divine right” of kings to rule without interference. Such a concept was unneeded by the strong Tudor monarchs, notably Henry VIII and Elizabeth I, who managed to work with Parliament while maintaining authority over it. But not so with James, who died in 1624 still clinging to his obsolete prerogative.

And not so with his son Charles I, the final king to believe in the divine prerogative, and as such, its most fervent advocate. In 1626 he attempted to illegally raise money from his nobility through forced loans, leading to more protests, refusals, and imprisonments. Leading the revolt were five nobles who sought a writ of habeas corpus, a summons demanding that the custodian of a prison (in this case, the king) present proof of authority to detain a prisoner.

The lawyer for one of the five followed Coke in citing Article 29 of the Magna Carta, which still resonates with our contemporary legal system:

“No free man is to be arrested, or imprisoned, or disseised, or outlawed, or exiled, or in any other way ruined, nor will we go against him or send against him, except by the lawful judgment of his peers or by the law of the land.”

The Crown argued that the royal prerogative exceeded the Charter, perhaps (but probably not) reflecting on the paradox of arguing with one’s subjects for the granting of absolute authority. William the Conqueror would never have indulged his underlings in such a pointless exercise. But desperate times call for desperate measures. The Court of King’s Bench ruled (again, no irony) for the king.

According to the ruling, a habeas corpus can only issue when a cause for imprisonment was deemed unjust by the court – since the king had stated no reasons for his sentences, the reasons could not be ruled as unjust!

In response to the ruling, Parliamentarians, led by Coke, drafted a Petition of Right that banned arbitrary imprisonment, taxation without Parliamentary approval, and in general placed the royal powers within the rule of law. Widely considered the greatest jurist of his age, Coke was at this point over seventy, and had previously served as Attorney General and Chief Justice, as well as many other court offices. The elephantine author of the opening quote of this post, Coke certainly lacked submissiveness, and despite his comment about gall, seemed to exemplify that quality, at least in the modern sense of possessing nerve and audacity.

The occasion to exercise the Petition arrived in 1628, when Charles called a new Parliamentary session, needing money for another war with France. Parliament offered to grant the funds in exchange for the king granting the Petition. The king, in a weak position to bargain, received the Petition, and only after the fact sought legal advice from his judges and learned the extent to which his powers were to be limited. But being a good king, he accepted these reforms with the grace that befitted his throne – not!

But wait a minute! you protest. Didn’t we already do this in the last post – isn’t this the same story, but with Edward Coke cast as Simon de Montfort and the Petition of Rights as the Provisions of Oxford? And isn’t Charles’ acquiescence to his subjects in the face of war with France, followed by defiance and reassertion of his royal prerogative, exactly like king John’s dispute with the barons? Well observed, gentle reader! History does repeat itself.

So what’s different? Well, a little thing called the world. When medieval kings granted liberties to their nobility, it was essentially a rebalancing of the economic power associated with land, and only affected a very small number of very wealthy families, whose estates were like miniature kingdoms with their own subjects and duties. The 17th Century Parliament represented something far more menacing to the ancient prerogative – the nascent powers of industry, mercantile capital, and the accompanying urban shift and upward mobility of the peasantry. The new way of thinking associated with these developments is today called liberalism, but at the time, the Parliamentarians were arguing in terms of the “ancient laws of the kingdom” that were eventually encoded in the Magna Carta, and a great mass of the English people were united under the reformist banner of Puritanism.

Changing the balance of power in society is never an orderly, procedural business. It is a time to test strengths, gather supports, stack up one’s material advantages, and see if your opponent can meet them. Charles dismissed Parliament, and reacted to their ensuing protests with more (now illegal) imprisonments.

Coke died in 1634, but his idea that the law, and not the king held sovereign power, was alive and well. In 1640, needing money once again, Charles summoned Parliament (the “long Parliament” which was fated to outlive the king himself) and found himself at war. Now led by John Pym, Parliament re-asserted the Petition of Rights with fresh demands for Parliamentary privilege, freedom of religion, and freedom of the subject. What followed was a complex chess match of impeachments, imprisonments, and political manoeuvring.

The conflict came to a head in the fall of 1641 when rebellion broke out in Ireland, which required raising an army. But who would be in control of such an army – the king or Parliament? Parliament passed the Grand Remonstrance, which reasserted at length the demands of the Petition, and effectively demanded an end to the royal prerogatives, although it did not say anything against the Crown itself. Charles responded by forcefully breaking into Parliament to arrest the conspiratorial authors of the remonstrance, but found them absent, having been alerted to his plans.

Not one but two armies were raised in the summer of 1642. Around this time Coke’s manuscripts were recovered and published as the second Institute, a revolutionary commentary on the Great Charter and its binding force upon the king. In such an intellectual ferment, there was much complicated play in the drawing of battle-lines, and defections between camps. The first Civil War lasted until June 1646, when the Parliamentary forces, led by Oliver Cromwell, defeated the king’s army and captured the king himself.

Now a prisoner of the state, did Charles relent his divine prerogative? No, he fought for it in a prolonged and complex negotiation. Confusion ensued, and he eventually escaped to Scotland, where he aligned with Presbyterians and raised a new army to re-conquer England. He was again defeated by Cromwall’s Puritan forces and captured in January 1649. Now an enemy of England, Charles was quickly sentenced to death by the High Court of Justice. Even in his final moments, he stubbornly believed himself to be Britain’s ruler by divine right, and above the law of the land.

The drama did not end there – the three English Civil Wars of 1642 to 1651 brought forth a military dictatorship, an abolishment of the monarchy and the House of Lords, and a decade of Puritanical rule. But the topic of this post is the Magna Carta, and its spawn the Petition of Right, whose work, for the time being, was accomplished. The Petition of Right remains a major component of the English Constitution. The monarchy would be restored in 1660, but from then on it would exist in a delicate dance of power with the rest of us, or at least with our body of elected representatives in that now formidable institution called Parliament.


Works Consulted:

Economy of England in the Middle Ages (

Edward III of England (

Feudalism (

Grand Remonstrance (

Harris, Carolyn. Magna Carta and its Gifts to Canada: Democracy, Law and Human Rights (Toronto: Dundurn, 2015)

The Magna Carta Project: 39 (

Magna Carta with Annotations, Unabridged. (

Petition of Right (

Stringham, Ray. Magna Carta: Fountainhead of Freedom. (Rochester, NY: Aqueduct, 1956)

Swindler, William F. Magna Carta: Legend and Legacy. (Indianapolis: Bobs-Merril Co., 1965)


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