1215 and All That

by Ed West

  And so when John returned from France in October 1214, he was broke and his opponents were now swelling in number.

  Although John made more concessions to the Church, Archbishop Langton was also sympathetic to the rebels; at some point he adopted as his emblem a symbol of St. Thomas Becket, a none-too-subtle hint at where his heart lay. Langton was a great scholar, who wrote page upon page of totally impenetrable commentary on the Bible. However, there was a theme in his later writing, much of which seemed to focus on the bad kings of the Old Testament who broke God’s law and who therefore had terrible things done to them. Biblical kings, he wrote, had a book of laws written down by the priests; today’s kings though ignore the advice of priests and rule without restraint. The archbishop gave lectures in which he attacked these modern rulers who tax not out of necessity but greed and vanity, and where he said kingship was a punishment to mankind. He also attacked ‘princes who flee from lengthy sermons.’ Who could he have been referring to?

  John did have some clerics on side: in his absence during his clumsy invasion, John appointed one of the least popular ministers, Peter des Roches, Bishop of Winchester, to run things. Des Roches had won the king’s favor by backing him against Langton; the bishop was ‘slack at scripture, sharp at accounting,’ according to one not very sympathetic account.

  Archbishop Langton was perhaps intellectually the most important figure behind Magna Carta, and although he may have not have written it (no one knows exactly who did, although it was certainly a collaboration), he played a big part in suggesting the idea; in 1213, he had raised the subject of Henry I’s coronation charter, which had never been thought of before.

  Strangely, one Sir Roger de Estreby of Lincolnshire, who was a mixture of inspired forward thinker and raving lunatic, had raised the idea of a charter of sorts in 1179. Sir Roger had petitioned Henry II to implement a seven-point program under which no one could be put to death without fair trial, that everyone should be allowed to come into their inheritance, and that positions should not be acquired by bribery. In some ways, he was a sort of mad prophet of democracy before his time, although he did say the entire program had been laid out to him in a vision by the Archangel Gabriel and St. Peter, and one of his more controversial ideas was that all Jews should be driven out of England after first being fleeced of all their money.

  In July 1213, the king swore to uphold the laws of Edward the Confessor, a promise made by every king since Henry I and duly ignored (and whether Edward’s time was that great is another matter). That month, Langton and some barons met the king’s ministers at St. Albans and the following year at Bury St. Edmunds (both towns have, down the years, claimed to be the home of Magna Carta).

  At some point, the barons began writing what became known as the Unknown Charter, which turned up in the French national archives in 1890, a sheet of parchment that included a copy of Henry I’s coronation charter, plus about a dozen additional clauses that must have been thought up between 1213 and June 1215. It begins: ‘King John concedes that he will arrest no man without judgement nor accept any payment for justice nor commit any unjust act,’ a line of writing that clearly evolved into Clauses 39 and 40. Some early clauses were dropped, mainly referring to forced service abroad, which was no longer applicable in 1215 when the war was lost.

  In January 1215, in a last desperate bid to distract from his troubles at home, John announced he was going on crusade, and that anyone who followed him would get to wear a shiny white cross. There were no takers, however, and the barons thought this pledge was done to ‘defraud them of their proposals.’ However, having taken the cross, or at least having promised to, the king was immune from attack (one of the reasons John had found it so difficult to find allies against his brother). From now on he took to wearing a white cross on his lapel.

  That month, the king and forty barons met in London, agreeing to rendezvous again in April. The rebels, led by Fitzwalter, demanded that the king obey Henry I’s Charter of Liberties, but John stalled and then double-crossed them, asking the Pope to intervene. The Holy Father would obviously support the king; not only was the Holy See naturally sympathetic to the monarch—John had also handed over the kingdom to them—but under Canon Law, no settlement made under duress was binding, and since kings were unlikely to make concessions in other circumstances, that was that, then.

  The Northerners raised an army and headed south. Fitzwalter was in charge when at Brackley, Northamptonshire, on May 5, 1215, a group of barons officially renounced their loyalty to the king, who had failed to show up for a meeting. (Brackley, along with Blyth, Salisbury, Stamford, and Warwick, was one of the official tournament venues installed by Richard, and it was at tournaments that conspiracies were usually hatched.)

  Diffidation, the process of renouncing fealty, was an extremely dangerous business, and one risked not just execution but having the entire family estate taken away.

  Fitzwalter, who was obviously a shy, retiring fellow, declared himself Marshal of the Army of God and the Holy Church. Among the other Northerners were Richard de Percy, an early member of the powerful Northumberland family who would feature prominently in the next couple of centuries; Roger de Montbegon of Lancashire; and William de Mowbray, a Yorkshire baron who was said to be ‘most valiant’ but ‘as small as a dwarf.’ Another, French-born, William de Forz, who was in his early twenties, joined because his mother Hawisa had to pay 5,000 marks to avoid being forcibly remarried. And although William Marshal had remained loyal to the king, his eldest son William Marshal the Younger was among the rebels, many of whom were young.

  Then there was Bishop Giles de Briouze, son of Matilda: in March, John had restored him to his position after his previous trouble with the family, only then to make a fresh demand of 9,000 marks. But the fact that John had already starved his brother and mother to death must have been something of a sore point for Giles beforehand. He joined the opposition in April, the only churchman to be officially part of the rebellion. Also on board were Robert de Ros and John de Lacy; Robert had had to offer 2,000 marks ‘to have his lands and his castle of which he was disseised because of the benevolence of the king’ (benevolence then means the opposite of what it means now). John had made de Lacy pay 7,000 marks and left him hanging in debt for two years, even after he had come to France with him. Eventually he had had enough.

  The barons had begun besieging the royal castle at Northampton, but they showed themselves to be quite useless and it went embarrassingly badly, with Fitzwalter’s standard-bearer ‘pierced through the head with a bolt from a crossbow.’ Fitzwalter, despite his grand personal seal that showed him as a terrifying warrior on horseback, and his notorious temper and personal violence, was not the greatest of military commanders. He was held responsible for a major defeat at Vaudreuil in 1202, becoming an object ‘of ridicule and contempt.’

  On May 12, the king ordered that the rebel barons’ castles be seized, but five days later there was an effective coup in London and the Northerners controlled the city. At this point, the king was persuaded he had to meet with Archbishop Langton, who was instrumental in bringing the monarch and the major barons together in June on the road between Windsor and London. The spot of Runnymede was chosen because it was impossible to ambush anyone at that location, the ground being too marshy for battle. There, on June 10, the rebels drew up a list of demands called ‘the Articles of the Barons’ in the hope of averting a civil war; these would be very similar to Magna Carta, especially its most important clauses, 39 and 40.

  What followed was not that unusual—almost every English king until the eighteenth century experienced rebellion of some sort—except that this time the rebels did something quite radical, forcing the monarch to issue a charter by which he and his successors would be restricted by law.

  When Marshal and Langton relayed to King John the demands at Brackley, he flew into a rage. ‘Why, amongst these unjust demands, did not the barons ask for my kingdom also?’ Matthew Paris wrote in private tha
t John ‘gnashed his teeth, rolled his eyes, grabbed sticks and straws and gnawed them like a madman’ while all these negotiations were going on.

  On June 10, John had dinner in Windsor Castle with Abbot Hugh of Bury St. Edmunds. One of the abbot’s friends made an innocuous remark that somehow annoyed John, and he flew into a rage and shouted at him until the man became ‘amazingly red’ and fled.

  On the fourteenth, John went to church. The lesson was a reading of the fourth chapter of the Revelation of St. John. It was about twenty-four elders wearing crowns ‘bowed before an enthroned, divine being the color of deep red gemstones, whose throne was surrounded by a rainbow that shimmered.’ It concludes with the elders ‘bowing before their master’s throne and throwing away their crowns.’ Whether this was a good or bad omen is hard to tell. The following day the most famous document in legal history would be made.

  CHAPTER TWELVE

  No Freeman

  Shall Be Arrested

  Charters were not new. As well as those that had been pledged by Ethelred the Unready and Henry I, Simon de Montfort had three years earlier issued a similar charter in his southern French territories, called the Statute of Pamiers (after he had massacred much of the population). Although the Northerners clearly did not have any sort of democracy in mind, the aim of the agreement was bold—addressing not just one bad king but also the very situation that allowed kings to get away with misruling.

  But in retrospect, unlike, say, the American Constitution, which had been clearly influenced by it, Magna Carta looks like a mixed bunch of ideas and demands, some timeless and others odd, petty or actually malicious. Clause 33, for instance—‘Henceforth all fish-weirs will be completely removed from the Thames and the Medway’—is not something an Englishman would get misty-eyed about, or often would have heard quoted in legal dramas, but at the time it was considered very important; fish-weirs (which are used to catch the animals) can mess up the navigation of rivers, and at a time when the average calorie intake was 1,500 a day, fishing was not just a pastime.1

  Other provisions dealt with practical and mundane things such as the standardization of weights and measures, or who was obliged to build bridges and control the corn supply. Clause 23, ordering the building of bridges, was included largely to help make hunting with falcons easier, which says something about the concerns of those who drew up Magna Carta.

  But John’s misrule is clear in most of the document, such as in Clause 50, which dealt with his French cronies: ‘We shall dismiss completely from their offices the relations of Girard d’Athée . . . namely Engelard de Cigogné, Peter, Guy and Andrew de Chanceaux, Guy de Cigogné, Geoffrey de Martigny with his brothers [and] Philip Mark, the Sheriff of Nottingham.’ Then there was Clause 51, promising the expulsion of all ‘alien knights, crossbowmen, serjeants and mercenaries who have come with horses and arms to the injury of the realm,’ which was running along the same lines.

  Forest laws were also a huge gripe, with forest fines accounting for half of all state revenue; Clause 53 sought to deal with this, giving ‘respeite,’ although it states that this and other issues relating to his brother’s and father’s reigns should only be resolved when John returned from crusade (John clearly had no intention of going on crusade, which any sane person knew by that point was a grueling task with a high risk of death). Another five of the clauses dealt with reducing the power of the sheriffs.

  Many more clauses concern money, and the king’s attempts to extract it from the barons. As with Henry I’s charter, there were aspects concerning widows; Clause 8 protected them from disparagement, which meant a marriage to someone of a lower status, stating that ‘no widow shall be compelled to marry’; Clauses 6 and 7 were also about marriage, while debt took up clauses 9-11 and 26-27.

  London was rewarded for its support with Clause 13, ensuring the city’s freedom of trade, and only one commoner witnessed the signing of Magna Carta, London Lord Mayor William Hardel. The people of London also wanted more self-government, as was increasingly becoming common for cities across western Europe (Bayonne in Gascony had become the latest to receive its own charter in April 1215). In 1191, London had also had its first elected Lord Mayor, the oddly named Henry Fitz-Ailwin de Londonestone (appropriately, his main act as mayor was encouraging the use of stone, a case of nominative determinism if ever there was one).2 John, however, removed a clause from the draft Articles of the Barons giving rights to Londoners to seek consent about taxes imposed on them, one interpretation being that he resented the upstart London merchants making demands on the king, it being bad enough when fellow nobles did so.

  Londoners were concerned with trade—which had been affected by the recent conflict—and as always with trying to make as much money as possible, hence the rather progressive Clause 41, which stated that no foreign merchants were to be harassed, except when their countries were at war with England. And even then ‘until we . . . know how the merchants of our land are treated in the enemy country; and if ours are safe there, the others shall be safe in our land.’

  There were also benefits for merchants and even villeins, the lowest form of life in medieval England; the Crown couldn’t snatch them, perhaps only because this would financially harm their lord. However, it was purposefully un-egalitarian, for Clause 20 protected villeines only from amercements imposed by the king. Lords could still do whatever they liked.

  Peasants were more concerned about something that appeared in the Unknown Charter but was left out of the 1215 agreement: that ‘no man should lose life or limb’ for offenses against animals in the forest. Neither is there anything in Magna Carta ‘to deal with the malpractices of Lords,’ as in the earlier document. (Otherwise, fifty-six of Magna Carta’s sixty-three clauses were also found in the Articles of the Barons.)

  We could get carried away with the idea it was progressive by later standards. Clause 54, for example, states ‘no man shall be arrested or imprisoned because of the appeal of a woman for the death of anyone but her husband.’ Clauses 10 and 11 are about debts owed to Jews, although it shouldn’t necessarily be seen as hostility toward Jews in themselves. In the Borat-esque nightmare world that was thirteenth-century England, Jews were effectively owned by the king who would take over any debts owed to them, so the animus here was directed at the monarch, rather than the Jews in particular. (That being said, both sides attacked Jews when they had the opportunity.) John’s son Henry would later sell the Jewish community to his brother Richard in 1255 for 5,000 marks.

  But the document was groundbreaking, nonetheless, and Clause 1 ends with the solemn assurance ‘. . . we have granted to all the freemen of our realm for ourselves and our heirs for ever all the liberties written below, to have and to hold, them and their heirs from us and our heirs.’ For a king to grant in perpetuum the rights of freemen was a momentous step.

  The most important clauses, however, were 38–40, which deal with arbitrary accusations and the idea of justice.

  Clause 38 stated that ‘no bailiff is in future to put anyone to law by his accusation alone, without trustworthy witnesses being brought forward.’ In other words, people could not be sentenced without credible witnesses.

  Then comes the most important sentence in legal history, Clause 39: ‘No freeman shall be arrested or imprisoned or dispossessed or outlawed or banished or in any way molested, nor will we go upon him nor send upon him, except by the lawful judgment of his peers and the law of the land.’ Clause 40 states a similar theme that ‘To no one will we sell, to no one will we deny or delay, right or justice.’

  Clause 39 and Clause 40 are still the law in England, although confusingly they are also both called Clause 29, as the 1297 reissue of the charter edited it down. Together, Clauses 38–40 form the backbone of English liberties, influencing the concept of due legal process and equality before the law. Those ideas have spread way beyond this half island and, largely thanks to the United States’s global domination, are seen as almost universal rights.

  For
that we have to thank Fitzwalter, a man who himself had been declared an outlaw without a trial and so demanded that it should never happen again. This would have a huge effect on what we now regard as human rights in the twenty-first century; whether Fitzwalter would fit in at a dinner party of progressive lawyers in New York or London today is besides the point.

  Still, as much as Clauses 38–40 have become almost sacred to English history, they may have been copied from the Germans; back in the eleventh century, the Emperor Conrad II had protected knights from arbitrary seizures except ‘save according to the constitution of our ancestors and the judgment of their peers.’3

  Most grating to the king, though, was the Security Clause, 61, which ensured that twenty-five barons would oversee the agreement and keep an eye on the king. Under the barons’ proposal, any four of the twenty-five could confront the king, and if he failed to act on these complaints, all twenty-five should seize his castles, lands, and possessions. The twenty-five were able to act if the king or his minister offended ‘anyone in anything,’ and it also suggested that people take an oath to the group. Clause 61 was therefore hugely provocative, stating the twenty-five were empowered to ‘assail [the king] in every way possible’ if he broke the treaty. This would effectively mean a permanent check and balance on royal power, something that a half-mad paranoid drunk like John was hardly going to be keen on. Later, his own mercenaries made fun of him saying there were ‘twenty-five kings of England.’

  The number twenty-five may have had some biblical meaning, according to some theories, being the square of five, the number of the law according to St. Augustine (five books are in the Pentateuch, Moses’s law). Or it might have just been a convenient number (the current British cabinet is of similar size).