It’s been a few months since I wrote Common Law Part Two and a return to the theme is long overdue. I had an idea of where I wanted to go in this Part Three but, in looking for the material I wanted to pull it together, I came across so much that I had to have a rethink.
You may be wondering about the relevance of the striking woman represented at the top of this article. That is an artist’s depiction of Eleanor of Aquitaine (1124-1204), a figure of some significance in English (British) history, well up there with Boudicca and Queen Elizabeth I.
Eleanor became Duchess of Aquitaine on the death of her father William X, Duke of Aquitaine, when she was 13 years old. Almost immediately she was married to Prince Louis of France who soon became King Louis VII, making her the Queen Consort of France. However, that marriage ended in 1252 when she was 28 due to her failure to bear a male heir and for reasons of consanguinity. In the same year she married Henry, Duke of Normandy, who was eleven years her junior. Two years later he became Henry II of England thus making her a Queen Consort for a second time and bringing together the lands that made up the Angevin Empire. She bore Henry five sons and three daughters. Three of those sons, Henry the Young King, Richard and John would also become Kings of England.
Eleanor was at the heart of power of two kingdoms; she was married to kings and gave birth to kings, but it is for her recognition of the abilities of one William Marshall, Earl of Pembroke, for which she must be remembered here.
There are seven ‘Pillars of Power” – martial skills, diplomatic skills, intelligence gathering, economic understanding, financial ability, loyalty and the power to inspire it in others, and enforcement of the laws and taxes. William Marshall, later known as William the Marshall, had all these qualities in spades which none of Eleanor’s sons did, not even The Lionheart. Early in his service, William had saved Eleanor’s life, being wounded and captured in the process. Having realised his value to her, she paid a ransom for his return and made sure he was kept close to court thereafter. Had Eleanor not seen the special qualities William possessed, Magna Carta may never have happened. For that she deserves recognition. We’ll come back to William the Marshall later.
We know that her youngest surviving son John became a seriously bad king, but it was hardly surprising. He had been a member of a dysfunctional power family in which there had been much rivalry, strife and rebellion against the rule of Henry II, even involving Queen Eleanor herself. There have been stage plays and films about this period, the most well-known being the Lion in Winter. King John was an undoubted tyrant who mistrusted the people, treated them disgracefully, taxed them arbitrarily, seized lands and imprisoned, tortured and executed them. However, he made one huge mistake. He also did it to powerful people who could, and did, fight back – the Barons.
What was the Barons’ beef? Well, during the reigns of Henry I and II there had been a very rapid development of law and judicial practice which had been based on what had already existed for hundreds of years. What is often overlooked is that Anglo-Saxon England was very efficiently organised and administered. Government was by the King and the Church under laws developed over the centuries as described in Part Two of this series. The King was crowned by the Church in the course of which he took an oath – an oath to the Church and an oath to the people to govern according to the ancient law.
England was also very rich. It had been able to maintain a coinage of uniform fineness, recalling the coins and reminting them every three to four years. That was one of the chief reasons William the Conqueror had wanted England quite apart from his belief that it had been promised to him by Edward the Confessor. When they got around to assessing the spoils, William and the conquering Normans had never seen so much gold.
It is often said that nothing much changed in England as a result of the Norman Conquest apart from who formed the ruling class. That hides the truth that there was still resistance and five long years of campaigning to subdue England. One important, vital thing William did was to take London quickly and have himself crowned in Westminster Abbey which involved taking the oath, the same oath that Anglo-Saxon kings had taken. This meant that he implicitly accepted the ancient laws and would govern accordingly once the country was pacified. The Barons had to conform and adopt the system of laws which, they discovered, they rather liked. That explains how they came to rebel against a tyrant king a century and a half later.
Anyway, to Magna Carta: The first stumbling block we come across is what version of Magna Carta do we hold to be the operative one. Is it Magna Carta 1215, of which four copies exist, or is it the 1216 version? Or the 1217? Or the 1225? If you check the government legislation website you’ll find that the version of Magna Carta which the government thinks operates is, in fact, Magna Carta 1297. Of course it does, because in 1297, Parliament existed, and this version of Magna Carta was laid before it, first in 1265 and again in 1297. Many of the Articles have been repealed down the succeeding centuries because they are no longer applicable leaving the bare bones of the original document. The original Article 39 is now Article 29 and Article 61, the one which provides for four Barons of a Baronial Council of twenty-five to distrain upon the King for doing unKingly things is removed.
William Keyte of commonlawconstitution.org is adamant that it is Magna Carta 1215. Historian Professor David Starkey, on the other hand, thinks it is Magna Carta 1225.
This is the Starkeyite position: Magna Carta 1215 was a disaster because it effectively established a committee with absolute powers to oversee the King, a sort of Committee of Public Safety as would be established during the French Revolution over 575 years later. What this would have meant is that the country would be delivered into the hands of the nobles and it would have descended into a narrow aristocratic republic at war with itself and which would have been every bit as tyrannical as King John had been, much to the detriment of everybody.
As we know, neither King John nor the Barons adhered to the Charter and it was annulled a few months later, on John’s appeal, by Pope Innocent III on the grounds that it had been extracted from the King and sealed under duress and was therefore not lawful. The country became embroiled in another Barons’ war in the course of which in 1216 John lost his baggage train and his life while attempting to cross the fens.
This is where William the Marshall steps back into the picture. After all, it had been he who had negotiated the truce between King John and the Barons which lead to Magna Carta, and it was he who had encouraged its creation. He now pledged himself to the service of John’s son, the nine-year-old Henry III and he became his Regent.
What William did was to reissue Magna Carta in 1217 keeping all the good bits such as consent to taxation, the promise of impartial justice and uniform weights and measures while jettisoning those parts he thought too onerous and threatening to the King. He put them to one side with a promise to discuss them later. That discussion never happened, and Article 61 was permanently left out. William turned Magna Carta into a proto-constitutional document which was granted again in 1225 in exchange for an agreement to general taxation in return for redress of grievance. The idea that government answers to the governed was established along with the idea that all are equal under the law.
William the Marshall didn’t live to see the re-issue of Magna Carta in 1225. He died peacefully at his home in Caversham in 1219 but, ever the warrior, not before leading a cavalry charge in the Battle of Lincoln in 1217 at around the age of seventy.
Contrary to popular belief, two things that weren’t specifically included in Magna Carta were Trial by Jury and Habeas Corpus, although something akin to Trial by Jury had been in existence in the ancient Anglo-Saxon dooms. By happy coincidence, something else happened in 1215 which was equally important to the development of English law and custom. The Lateran Council, called by Pope Innocent III in 1213, finally took place in November of 1215.
In one of the Canons issued at the council it reduced the prohibited degrees of consanguinity in marriage from seven to four which meant that marriage between people with a common grandparent (first cousins) was forbidden. This, as much as anything according to David Starkey, contributed to the ending in British culture of the clan system and prepared the ground for the nuclear family and laws of contract.
The second change was that priests were forbidden to officiate at trials by combat and trials by ordeal. Clerics were forbidden to pronounce or execute a sentence of death. Nor could they act as judges in extreme criminal cases, nor take part in matters connected with any judicial tests. This created the grounds for the development of Trial by Jury.
The Magna Carta of 1297 granted by Edward I was simply a re-issue of Magna Carta 1225 which had also been re-confirmed in 1237, 1253 and 1265.
If all this is true, why then did we celebrate along with Queen Elizabeth II, the 800th Anniversary of Magna Carta on June 15th 2015, and not June 15th this year, 2025? Why did four Peers of the Realm petition the Queen in March 2001, invoking Article 61 over the Treaty of Nice on the grounds that, by giving away sovereignty to the European Union, she was endangering the ancient rights and freedoms of the British people, in effect betraying her Coronation Oath? The petition had no effect because, apart from anything else, the Committee of Twenty-Five Barons had not the means to:
“distrain and afflict us by every means possible, by taking castles, lands and possessions and in any other ways they can, until it is rectified in accordance with their judgment, albeit sparing our own person and the persons of our queen and children”.
And why did the Magna Carta Project, which aimed to provide a commentary and resources for scholars, schools and the general public, start its research and time its activities and lectures around the 800th anniversary on 15th June 2015?
Researcher Edward Fitzgerald, in his book Smoke and Mirrors, gives his rationale for insisting that it is still Magna Carta 1215 which is valid [my parentheses]:
Multiple amendments subsequent to the 1215 original Magna Carta signed in Runnymede on 15th June 1215 [King John did not sign it, he sealed it] were made by various Kings (and a Regent) – [William the Marshall] during troubled times and with a far less conspicuous list of witnesses than the 1215 agreement. I refer to the detailed article by Dr Sophie Ambler [on the Magna Carta Project Website].
The 1225 version was subsequently debated in 1265 in the first assembly of Parliament and is regarded as the version appearing on the Statute Book since 1297. The 1297 version has since had much of its text repealed and it is the only version considered ‘valid’ by those in Parliament. As a settlement of armed conflict with the Barons (representing the men and women of the land) and King John due to him breaking his Coronation Oath, it is a preposterous view of Parliament, since the 1215 Magna Carta (Charter of Runnymede) stands superior in perpetuity and is not repealable.
The Article by Dr Sophie Ambler was a feature of the month on the Magna Carta Project website in July 2014 under the title The Witness Lists to Magna Carta 1215-1265. It is a very interesting account of the trials and tribulations of the times and the years immediately after 1215. If you are interested, you can read it here.
We are where we are with this. Edward Fitzgerald and William Keyte and many of the rest of us may insist until the cows come home that it is Magna Carta 1215 that is still valid. Parliament will deny it. David Starkey provides a very useful historian’s interpretation and an understandable word of caution in the realms of what ‘would have’ occurred. What would be intriguing would be a debate between him and either William Keyte or Edward Fitzgerald on the subject. However, I doubt that a conclusion would be reached, and the argument will probably rage on forever.
Trying to use Magna Carta 1215 Article 61 to reign in a tyrannical government is somewhat hamstrung by the fact that the Monarch is not at present the effective part of the executive arm of government that the constitution permits. He is captured by Parliament. There would undoubtedly be a constitutional crisis were he to attempt to withhold his assent to any Act being implemented by the elected government. That said, there is one part that we all should know and have engraved on our hearts, whether it’s from Magna Carta 1215, 1216, 1217, 1225 or the remnants of 1297 which are on the Statute Book and it’s this:
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.
If Lucy Connolly, or any of the other people imprisoned in 2024 as a result of the protests following the Southport atrocity, had been made aware of this and felt that they were being unjustly tried, they could, and should, have claimed their right to a Trial by Jury. While they would have had a Jury Trial, not a Trial by Jury, and the outcome would have been uncertain, at least they would not then have been left to the sole mercy of a grand-standing, activist judge.
TA's Note: I asked Alpha India to convert the painting at the top of this article into a photograph, and she came up with this:
