Habeas Corpus
[Latin, You have the body.] A writ (court order) that commands an individual or a government official who has restrained another to produce the prisoner at a designated time and place so that the court can determine the legality of custody and decide whether to order the prisoner's release.
A writ of habeas corpus directs a person, usually a prison warden, to produce the prisoner and justify the prisoner's detention. If the prisoner argues successfully that the incarceration is in violation of a constitutional right, the court may order the prisoner's release. Habeas corpus relief also may be used to obtain custody of a child or to gain the release of a detained person who is insane, is a drug addict, or has an infectious disease. Usually, however, it is a response to imprisonment by the criminal justice system.
A writ of habeas corpus is authorized by statute in federal courts and in all state courts. An inmate in state or federal prison asks for the writ by filing a petition with the court that sentenced him or her. In most states, and in federal courts, the inmate is given the opportunity to present a short oral argument in a hearing before the court. He or she also may receive an evidentiary hearing to establish evidence for the petition.
THE HABEAS CORPUS CONCEPT WAS FIRST EXPRESSED IN THE MAGNA CHARTA, A CONSTITUTIONAL DOCUMENT FORCED ON KING JOHN BY ENGLISH LANDOWNERS AT RUNNYMEDE ON JUNE 15, 1215. AMONG THE LIBERTIES DECLARED IN THE MAGNA CHARTA WAS THAT "NO FREE MAN SHALL BE SEIZED, OR IMPRISONED, OR DISSEIZED, OR OUTLAWED, OR EXILED, OR INJURED IN ANY WAY, NOR WILL WE ENTER ON HIM OR SEND AGAINST HIM EXCEPT BY THE LAWFUL JUDGMENT OF HIS PEERS, OR BY THE LAW OF THE LAND." THIS PRINCIPLE EVOLVED TO MEAN THAT NO PERSON SHOULD BE DEPRIVED OF FREEDOM WITHOUT DUE PROCESS OF LAW.
The writ of habeas corpus was first used by the common-law courts in thirteenth- and fourteenth-century England. These courts, composed of legal professionals, were in competition with feudal courts, which were controlled by local landowners, or "lords." The feudal courts lacked procedural consistency, and on that basis, the common-law courts began to issue writs demanding the release of persons imprisoned by them. From the late fifteenth to the seventeenth centuries, the common-law courts used the writ to order the release of persons held by royal courts, such as the Chancery, admiralty courts, and the Star Chamber.
THE ONLY REFERENCE TO THE WRIT OF HABEAS CORPUS IN THE U.S. CONSTITUTION IS CONTAINED IN ARTICLE I, SECTION 9, CLAUSE 2. THIS CLAUSE PROVIDES, "THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS SHALL NOT BE SUSPENDED, UNLESS WHEN IN CASES OF REBELLION OR INVASION THE PUBLIC SAFETY MAY REQUIRE IT." PRESIDENT ABRAHAM LINCOLN SUSPENDED THE WRIT IN 1861, WHEN HE AUTHORIZED HIS CIVIL WAR GENERALS TO ARREST ANYONE THEY THOUGHT TO BE DANGEROUS. IN ADDITION, CONGRESS SUSPENDED IT IN 1863 TO ALLOW THE UNION ARMY TO HOLD ACCUSED PERSONS TEMPORARILY UNTIL TRIAL IN THE CIVILIAN COURTS. THE UNION ARMY REPORTEDLY IGNORED THE STATUTE SUSPENDING THE WRIT AND CONDUCTED TRIALS UNDER MARTIAL LAW.
In 1789, Congress passed the Judiciary Act of 1789 (ch. 20, § 14, 1 Stat. 73 [codified in title 28 of the U.S.C.A.]), which granted to federal courts the power to hear the habeas corpus petitions of federal prisoners. In 1867, Congress passed the Habeas Corpus Act of February 5 (ch. 28, 14 Stat. 385 [28 U.S.C.A. §§ 2241 et seq.]). This statute gave federal courts the power to issue habeas corpus writs for "any person … restrained in violation of the Constitution, or of any treaty or law of the United States." The U.S. Supreme Court has interpreted it to mean that federal courts may hear the habeas corpus petitions of state prisoners as well as federal prisoners.
The writ of habeas corpus is an extraordinary remedy because it gives a court the power to release a prisoner after the prisoner has been processed through the criminal justice system, with all its procedural safeguards and appeals. For this reason, the burden is initially on the petitioning prisoner to prove that he or she is being held in violation of a constitutional right. If the petitioner can meet this burden with sufficient evidence, the burden then shifts to the warden to justify the imprisonment.
Rubin "Hurricane" Carter
Carter fought his conviction in state court, but the verdict was upheld. In 1974 he published The Sixteenth Round: From Number 1 Contender to Number 45472. The book became a national best-seller and drew attention to his case. In 1975 Bob Dylan wrote and recorded the song "Hurricane," which recounted Carter's arrest and trial and characterized Carter as an innocent man. This publicity, along with an investigation by the New Jersey public defenders' office, led to a motion for a new trial. The motion was granted, but Carter and Artis were convicted again in 1976. Carter remained imprisoned; Artis was paroled in 1981.
The State of New Jersey appealed to the Third Circuit Court of Appeals, asking to reverse Sarokin's ruling and requesting that Carter remain incarcerated until a final ruling. The Third Circuit rejected both appeals. New Jersey appealed to the U.S. Supreme Court, which also refused to overturn. The state chose not to attempt a third prosecution of Carter and Artis. Carter moved to Canada where he headed the Association for the Defense of the Wrongly Convicted.
A prisoner may file a petition for a writ of habeas corpus with the sentencing court only after exhausting all appeals and motions. Federal courts may receive a petition from a state prisoner, but not until the petitioner has attempted all available appeals and motions and habeas corpus petitions in the state courts. Federal prisoners must exhaust all available appeals and motions in the federal sentencing court and federal appeals courts before filing a habeas corpus petition with the sentencing court. If the first petition is denied, the inmate may petition the appeals courts.
A petition for a writ of habeas corpus is a civil action against the jailer. It is neither an appeal nor a continuation of the criminal case against the prisoner. It is not used to determine guilt or innocence. Rather, the purpose is solely to determine whether the confinement is in violation of a constitutional right. This is significant because it limits the scope of complaints that a petitioner may use as a basis for the writ.
Violation of the Due Process Clauses of the Fifth and Fourteenth Amendments is the most common basis for a writ of habeas corpus. Prose-cutorial misconduct, juror malfeasance, and ineffective assistance of counsel are common due process grounds for the writ. Fifth Amendment grounds include failure of the police to give Miranda warnings before in-custody questioning, in violation of the right against Self-Incrimination, and multiple trials, in violation of the Double Jeopardy prohibition. The Eighth Amendment right against Cruel and Unusual Punishment is another common ground for habeas corpus relief, especially in cases involving the death penalty or a lengthy prison term.
There are several notable restrictions on the writ's application. Fourth Amendment violations of the right against unreasonable Search and Seizure cannot be raised in a habeas corpus petition. Prisoners are not entitled to a court-appointed attorney for habeas corpus petitions. Newly developed constitutional principles will not be applied retroactively in habeas corpus cases except where doubt is cast on the guilt of the prisoner. Delay in filing a habeas petition may result in its dismissal if the government is prejudiced (i.e., made less able to respond) by the delay. In addition, the petitioner must be in custody to request a writ of habeas corpus. This rule prevents a prisoner from challenging a conviction through habeas corpus after serving out a sentence for the conviction.
The law of habeas corpus is ever changing. In the 1990s, the U.S. Supreme Court took steps to further limit the writ's application. In Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S. Ct. 1715, 118 L. Ed. 2d 318 (1992), the Court held that a habeas corpus petitioner is not entitled to an evidentiary hearing in federal court unless she or he can show two things: a reason for failing to develop evidence at trial, and actual prejudice to the prisoner's defense as a result of the failure. In Herrera v. Collins, 506 U.S. 390, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993), the Court held that a claim of actual innocence is not a basis for federal habeas corpus relief. This means that newly discovered evidence alone does not entitle a petitioner to federal habeas corpus relief.
The availability and import of habeas corpus in state courts is also subject to change through judicial decisions and new laws. For example, in 1995, the Texas Legislature passed a law that made the habeas corpus process concurrent with appeals (Tex. Crim. Proc. Code Ann. art. 11.071). This law effectively limited the number of times that a Texas state prisoner could challenge the disposition of a criminal case. Significantly, the law applied to all criminal defendants, including those facing the death penalty. Under the legislation, a death row inmate has only one round of review in Texas state courts before seeking relief in federal court.
In 1996, Congress passed the Anti-Terrorism and Effective Death Penalty Act (AEDPA) (Pub. L. No. 104-132, 110 Stat. 1214). Congress sought to streamline post-conviction appeals proceedings and to curtail the time that prisoners could use to seek habeas corpus relief. Since the enactment of the law, the U.S. Supreme Court has been called upon to interpret a number of the AEDPA provisions; these rulings primarily have addressed technical details of the workings of the new law but the Court has endorsed the AEDPA and removed jurisdiction from the lower federal courts to hear many habeas petitions. The Court upheld the constitutionality of the AEDPA in Felker v. Turpin, 518 U.S. 651, 116 S. Ct. 2333, 135 L. Ed. 2d 827 (1996).
The habeas corpus provisions represent a major shift in federal-state judicial relations, for Congress directed that federal courts generally defer to state court judgments on questions of federal Constitutional Law in criminal cases. The AEDPA established a "deference" standard, which mandates that the federal courts, in reviewing state court convictions, defer to a state court ruling on the merits of any habeas corpus claim. This deferral includes questions of fact and of law, as well as mixed questions of fact and law. A federal court must defer unless the state court adjudication of the claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the U.S. Supreme Court; or if the state conviction resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.
The AEDPA also contains a number of specific rules for habeas corpus review. The act provides for a one-year filing deadline for non-capital habeas corpus petitions. The time starts running at the conclusion of direct review or expiration of time for seeking such review. The law requires a certificate of appealability from a circuit judge or justice before a petitioner may appeal from denial of relief. The petitioner must make a substantial showing of denial of a constitutional right, and the certificate must be issue-specific. The AEDPA also allows federal courts to deny relief with respect to unexhausted claims but may not grant relief if the claim is unexhausted. The habeas petitioner can avoid exhaustion only if there is no available state remedy or the remedy is ineffective to protect the petitioner's rights. If there is no state remedy because of a procedural default, federal review is still prohibited.
The AEDPA also places restrictions on the ability of a petitioner to obtain an evidentiary hearing on a claim where the prisoner failed to develop the factual basis. Because state court fact-findings are presumed to be correct, the petitioner must rebut the presumption by clear and convincing evidence. To obtain an evidentiary hearing, the petitioner must show that the claim relies on a new rule made retroactive by the U.S. Supreme Court or that the factual predicate could not have been discovered earlier through due diligence. Moreover, in all cases, the petitioner must show by clear and convincing evidence that but for the alleged error for which a hearing is sought, no reasonable factfinder would have found petitioner guilty of the underlying offense. This is a steep hurdle for a habeas petitioner to overcome.
The AEDPA also seeks to prevent the abuse of habeas corpus by limiting the number of times a prisoner may ask for a writ. A successive habeas petition may not be filed in district court unless the petitioner is authorized to do so by a three-judge panel of the Court of Appeals. The U.S. Supreme Court, in Felker, characterized this provision as an acceptable "gatekeeping" mechanism. If petitioners make a Prima Facie showing that they satisfy the exceptions against successive petitions they may proceed; otherwise the court must dismiss the petition. If a successive claim was presented in a prior petition, it must be dismissed; no exceptions are authorized by the AEDPA. Though the AEDPA provides some narrow exceptions to this rule, any claim must establish by clear and convincing evidence that but for the error no reasonable factfinder would have found the petitioner guilty of the underlying offense.
In habeas petitions from death row inmates, the AEDPA imposes additional rules beyond those already described. The rules apply to states that establish certain standards for competence of counsel. For states to benefit from these additional limitations, they must provide a mechanism for appointment and compensation of competent counsel in state post-conviction proceedings or for appointment of counsel to handle the appeal and post-conviction remedies in a unitary proceeding. Once the state court has made an appointment of counsel, a federal court that would have jurisdiction over the case may enter a stay of execution. The stay expires if a timely petition is not filed, if the prisoner properly waives the right to pursue federal habeas relief, or if relief is denied at any stage of federal review. Once a stay vacates under any of those circumstances, a new one may not be imposed unless the petitioner can overcome the presumption against successive petitions.
The AEDPA sets a time limit for habeas petition in capital cases: The petition must be filed within 180 days after final state court affirmance on direct review. In addition, the AEDPA requires that capital habeas cases be given priority over all non-capital matters, and it imposes time limits on resolution. These include a decision by the district court within 180 days after the petition is filed, although the court may extend its time by no more than 30 days. Failure by the district court to act within the time limits may be enforced by a petition for writ of mandate. More importantly, a court of appeals must decide the case within 120 days after the reply brief is filed; any petition for rehearing must be decided within 30 days after the petition is filed, or 30 days after any requested responsive pleading is filed. If rehearing or rehearing en banc is granted, the case must be decided within 120 days after the order granting such rehearing. In addition, the time limits are applicable to all first petitions, successive petitions, and habeas cases considered on remand from a court of appeals or the U.S. Supreme Court.The AEDPA has changed the legal landscape for prisoners seeking writs of habeas corpus. Petitioners must act within set deadlines, and they must attempt to place all issues in dispute before the first habeas-reviewing federal court or risk the chance of being rejected in a successive petition.
THE HABEAS CORPUS CONCEPT WAS FIRST EXPRESSED IN THE MAGNA CHARTA, A CONSTITUTIONAL DOCUMENT FORCED ON KING JOHN BY ENGLISH LANDOWNERS AT RUNNYMEDE ON JUNE 15, 1215. AMONG THE LIBERTIES DECLARED IN THE MAGNA CHARTA WAS THAT "NO FREE MAN SHALL BE SEIZED, OR IMPRISONED, OR DISSEIZED, OR OUTLAWED, OR EXILED, OR INJURED IN ANY WAY, NOR WILL WE ENTER ON HIM OR SEND AGAINST HIM EXCEPT BY THE LAWFUL JUDGMENT OF HIS PEERS, OR BY THE LAW OF THE LAND." THIS PRINCIPLE EVOLVED TO MEAN THAT NO PERSON SHOULD BE DEPRIVED OF FREEDOM WITHOUT DUE PROCESS OF LAW.
THE ONLY REFERENCE TO THE WRIT OF HABEAS CORPUS IN THE U.S. CONSTITUTION IS CONTAINED IN ARTICLE I, SECTION 9, CLAUSE 2. THIS CLAUSE PROVIDES, "THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS SHALL NOT BE SUSPENDED, UNLESS WHEN IN CASES OF REBELLION OR INVASION THE PUBLIC SAFETY MAY REQUIRE IT." PRESIDENT ABRAHAM LINCOLN SUSPENDED THE WRIT IN 1861, WHEN HE AUTHORIZED HIS CIVIL WAR GENERALS TO ARREST ANYONE THEY THOUGHT TO BE DANGEROUS. IN ADDITION, CONGRESS SUSPENDED IT IN 1863 TO ALLOW THE UNION ARMY TO HOLD ACCUSED PERSONS TEMPORARILY UNTIL TRIAL IN THE CIVILIAN COURTS. THE UNION ARMY REPORTEDLY IGNORED THE STATUTE SUSPENDING THE WRIT AND CONDUCTED TRIALS UNDER MARTIAL LAW.
First published in
17 June 2014
A romantic view of a much-misunderstood episode
Magna Carta has an iconic status. To many, it is the foundation stone of English liberty – the guarantor of the freedoms we cherish, and the solemn legal basis for our centuries-old way of life.
It is unique in many ways, and widely appreciated as such. When an “original” 1297 Magna Carta was sold by Sotheby’s in New York in 2007, it went under the hammer for $21.3 million, a record price for a single sheet of vellum.
Appreciation of Magna Carta stretches beyond the British Isles. In the United States, its hallowed phrases are cherished as a political inheritance from England that underpins the United States Constitution, as well as the charters of Massachusetts, Maryland, Connecticut, Rhode Island, Carolina, and Georgia (all published between 1629 and 1732). Franklin D Roosevelt summed up a widely-held American view in his inaugural address of 1941, “The democratic aspiration is no mere recent phase in recent history … it was written in Magna Carta”.
Although England has no written constitution, most people assume that if we did, Magna Carta would be it. Its status is so unimpeachable that last century’s best-loved maverick judge, Lord Denning (Master of the Rolls, 1962–82), rhapsodised that it was “the foundation of the freedom of the individual against the arbitrary authority of the despot”. And only this week, Prime Minister David Cameron noted that in it “King John had to accept his subjects were citizens – for the first time giving them rights, protections and security”. He went on to encourage all schools to teach it when inculcating British (sic) values, as well as exhorting towns to commemorate it, and events to celebrate it.
But sadly, this widespread worship of Magna Carta as one of the planks of an English person’s rights has no basis in law or history. In fact, almost everything commonly attributed to Magna Carta is wrong.
For a start, the document waved about at Runnymead on the 15th of June 1215 was not called Magna Carta, and King John did not sign it.
Despite widespread beliefs about the charter’s contents, it actually contained very little of significance. The Articles of the Barons (as it was known) did not guarantee freedom to all true-born English people, subject the king to Parliament, enshrine the notion of trial by jury, guarantee freedom of speech, embed the concept of no taxation without representation, or anything else along these lines. It was a largely dull document that dealt with dozens of administrative matters (inheritance laws, feudal obligations, church, land and forestry rights, fish weirs, prisoners, and so on). It also had a number of clauses we would not want to highlight today, like “No one will be taken or imprisoned upon the appeal of a woman for the death of anyone except her husband” and punitive clauses against Jewish bankers.
Another fact not widely recognised is that the grateful recipients of the rights granted in the Articles of the Barons were not the long-suffering English people, but the aristocracy: John’s Anglo-Norman (i.e., French, but living over here) barons, who were largely responsible for most of the oppressing going on in the country. The Articles of the Barons was, basically, an agreement between King John and his uppity aristocratic military henchmen. For example, one of the barons was none other than our good friend King John’s Sheriff of Nottingham, one of English folklore’s greatest villains.
So, the crowds at Runnymead were not grateful English serfs. The Articles of the Barons had nothing to say about them, and they remained the abused majority.
If that was not surprising enough given Magna Carta’s mythical status, it is perhaps even more odd that, as it turned out, the Runnymead agreement was only honoured by the barons and King John for a total of nine weeks, before being ignored and consigned to the midden heap.
If that was not surprising enough given Magna Carta’s mythical status, it is perhaps even more odd that, as it turned out, the Runnymead agreement was only honoured by the barons and King John for a total of nine weeks, before being ignored and consigned to the midden heap.
So why do philosophers, politicians, judges and litigants across the English-speaking world, idolise Magna Carta as the fount of freedom?
Well, as usual, it’s down to people not being a hundred per cent clear about the facts. Magna Carta would have been lost in relative obscurity, and known only to people who like to know such things, were it not for Parliamentarians in the 1600s fighting to find an answer to the absolutism of the Stuart monarchy. They eventually located their prize in Magna Carta, which they exhumed from dusty legal digests, holding it aloft as a time-honoured cornerstone of the English constitution.
The only trouble was, they ignored all the little details that got in the way of their story, and simplified it into something that would suit their purposes. For example, they squidged over four entirely separate versions of it into their one historic “Magna Carta”.
The document’s real history, unsurprisingly, was far more complex. And interesting.
Royal charters setting out good kingly practice were well over a century old. The practice had started with the Norman king, Henry I (1100–1135), fourth son of William the Conqueror. When Henry seized the throne, he published a “coronation charter” in which he assured everyone he would observe the good laws and customs of King Edward the Confessor. Which of course he then singularly failed to do.
Henry published the charter because the country was still going through the upheaval of meshing together Anglo-Saxon and Norman law, so the declaration was designed to reassure his subjects that he was going to play by the rules. He had not invented the idea. Over half a century before him, Edward the Confessor himself had sworn at his coronation to uphold the laws of King Cnut.
When Henry I died in 1135 and Stephen of Blois (a city south of Paris) usurped the throne, Stephen carried on the tradition and issued his own coronation charter. His purpose was, predictably, to reassure his new subjects that even though he knew very little about England, he would govern properly and responsibly. Of course, once the ink was dry, civil war and anarchy raged, and England burned for 20 years under him.
When Stephen in turn died and the throne passed to Henry II in 1154, England became an even more tense place. Henry II was from Anjou, a region bordering Normandy and in fierce competition with it. So with Henry’s accession, the Anglo-Norman barons of England suddenly found themselves subject to the rule of their arch-rivals. In line with tradition, Henry II also duly issued a coronation charter.
Predictably (this is the twelfth century), Henry II, and then his two sons, Richard I and John, all proved themselves cruel and venal. Their family, the Plantagenets, became a byword for murder and sacrilege – think Henry and Thomas Becket, or John’s suspected murder of the 12-year-old Arthur (his rival for the throne that he was supposed to be looking after). Henry II had been no angel, but John excelled at cruelty and the sexual predation of his nobles’ wives and daughters. It was hardly a secret that his courtiers loathed him intensely.
And all the while, the Plantagenets taxed England as hard as they could. They siphoned off money at an unprecedented level, and although Henry’s legal reforms may be seen as having laid the basis for our modern legal system, the reason he did it was to industrialise the collection of fines, which were set at increasingly ruinous levels.
Although Henry was bad, John was worse. He lost the majority of the country’s lands in France, and squeezed every penny out of the Church and his barons that they had managed to recover after his older brother, Richard, had bled them dry in order to fund his grandstanding on crusade. As a result, John was reviled by all. The monk Matthew Paris, writing at St Albans Abbey, summed up the feelings of many, “Black as is Hell, John’s presence there makes it blacker still”.
It is unique in many ways, and widely appreciated as such. When an “original” 1297 Magna Carta was sold by Sotheby’s in New York in 2007, it went under the hammer for $21.3 million, a record price for a single sheet of vellum.
Appreciation of Magna Carta stretches beyond the British Isles. In the United States, its hallowed phrases are cherished as a political inheritance from England that underpins the United States Constitution, as well as the charters of Massachusetts, Maryland, Connecticut, Rhode Island, Carolina, and Georgia (all published between 1629 and 1732). Franklin D Roosevelt summed up a widely-held American view in his inaugural address of 1941, “The democratic aspiration is no mere recent phase in recent history … it was written in Magna Carta”.
Although England has no written constitution, most people assume that if we did, Magna Carta would be it. Its status is so unimpeachable that last century’s best-loved maverick judge, Lord Denning (Master of the Rolls, 1962–82), rhapsodised that it was “the foundation of the freedom of the individual against the arbitrary authority of the despot”. And only this week, Prime Minister David Cameron noted that in it “King John had to accept his subjects were citizens – for the first time giving them rights, protections and security”. He went on to encourage all schools to teach it when inculcating British (sic) values, as well as exhorting towns to commemorate it, and events to celebrate it.
But sadly, this widespread worship of Magna Carta as one of the planks of an English person’s rights has no basis in law or history. In fact, almost everything commonly attributed to Magna Carta is wrong.
For a start, the document waved about at Runnymead on the 15th of June 1215 was not called Magna Carta, and King John did not sign it.
Despite widespread beliefs about the charter’s contents, it actually contained very little of significance. The Articles of the Barons (as it was known) did not guarantee freedom to all true-born English people, subject the king to Parliament, enshrine the notion of trial by jury, guarantee freedom of speech, embed the concept of no taxation without representation, or anything else along these lines. It was a largely dull document that dealt with dozens of administrative matters (inheritance laws, feudal obligations, church, land and forestry rights, fish weirs, prisoners, and so on). It also had a number of clauses we would not want to highlight today, like “No one will be taken or imprisoned upon the appeal of a woman for the death of anyone except her husband” and punitive clauses against Jewish bankers.
Another fact not widely recognised is that the grateful recipients of the rights granted in the Articles of the Barons were not the long-suffering English people, but the aristocracy: John’s Anglo-Norman (i.e., French, but living over here) barons, who were largely responsible for most of the oppressing going on in the country. The Articles of the Barons was, basically, an agreement between King John and his uppity aristocratic military henchmen. For example, one of the barons was none other than our good friend King John’s Sheriff of Nottingham, one of English folklore’s greatest villains.
So, the crowds at Runnymead were not grateful English serfs. The Articles of the Barons had nothing to say about them, and they remained the abused majority.
If that was not surprising enough given Magna Carta’s mythical status, it is perhaps even more odd that, as it turned out, the Runnymead agreement was only honoured by the barons and King John for a total of nine weeks, before being ignored and consigned to the midden heap.
If that was not surprising enough given Magna Carta’s mythical status, it is perhaps even more odd that, as it turned out, the Runnymead agreement was only honoured by the barons and King John for a total of nine weeks, before being ignored and consigned to the midden heap.
So why do philosophers, politicians, judges and litigants across the English-speaking world, idolise Magna Carta as the fount of freedom?
Well, as usual, it’s down to people not being a hundred per cent clear about the facts. Magna Carta would have been lost in relative obscurity, and known only to people who like to know such things, were it not for Parliamentarians in the 1600s fighting to find an answer to the absolutism of the Stuart monarchy. They eventually located their prize in Magna Carta, which they exhumed from dusty legal digests, holding it aloft as a time-honoured cornerstone of the English constitution.
The only trouble was, they ignored all the little details that got in the way of their story, and simplified it into something that would suit their purposes. For example, they squidged over four entirely separate versions of it into their one historic “Magna Carta”.
The document’s real history, unsurprisingly, was far more complex. And interesting.
Royal charters setting out good kingly practice were well over a century old. The practice had started with the Norman king, Henry I (1100–1135), fourth son of William the Conqueror. When Henry seized the throne, he published a “coronation charter” in which he assured everyone he would observe the good laws and customs of King Edward the Confessor. Which of course he then singularly failed to do.
Henry published the charter because the country was still going through the upheaval of meshing together Anglo-Saxon and Norman law, so the declaration was designed to reassure his subjects that he was going to play by the rules. He had not invented the idea. Over half a century before him, Edward the Confessor himself had sworn at his coronation to uphold the laws of King Cnut.
When Henry I died in 1135 and Stephen of Blois (a city south of Paris) usurped the throne, Stephen carried on the tradition and issued his own coronation charter. His purpose was, predictably, to reassure his new subjects that even though he knew very little about England, he would govern properly and responsibly. Of course, once the ink was dry, civil war and anarchy raged, and England burned for 20 years under him.
When Stephen in turn died and the throne passed to Henry II in 1154, England became an even more tense place. Henry II was from Anjou, a region bordering Normandy and in fierce competition with it. So with Henry’s accession, the Anglo-Norman barons of England suddenly found themselves subject to the rule of their arch-rivals. In line with tradition, Henry II also duly issued a coronation charter.
Predictably (this is the twelfth century), Henry II, and then his two sons, Richard I and John, all proved themselves cruel and venal. Their family, the Plantagenets, became a byword for murder and sacrilege – think Henry and Thomas Becket, or John’s suspected murder of the 12-year-old Arthur (his rival for the throne that he was supposed to be looking after). Henry II had been no angel, but John excelled at cruelty and the sexual predation of his nobles’ wives and daughters. It was hardly a secret that his courtiers loathed him intensely.
And all the while, the Plantagenets taxed England as hard as they could. They siphoned off money at an unprecedented level, and although Henry’s legal reforms may be seen as having laid the basis for our modern legal system, the reason he did it was to industrialise the collection of fines, which were set at increasingly ruinous levels.
Although Henry was bad, John was worse. He lost the majority of the country’s lands in France, and squeezed every penny out of the Church and his barons that they had managed to recover after his older brother, Richard, had bled them dry in order to fund his grandstanding on crusade. As a result, John was reviled by all. The monk Matthew Paris, writing at St Albans Abbey, summed up the feelings of many, “Black as is Hell, John’s presence there makes it blacker still”.
This was never called ‘Magna Carta’
By early 1215, John’s barons were in full revolt against him. The final straw came on the 17th of May, when they seized London. Facing the loss of his capital and his precious treasury, John capitulated, and agreed to meet with leading churchmen and his barons at Windsor to stave off a full civil war.
By early 1215, John’s barons were in full revolt against him. The final straw came on the 17th of May, when they seized London. Facing the loss of his capital and his precious treasury, John capitulated, and agreed to meet with leading churchmen and his barons at Windsor to stave off a full civil war.
By early 1215, John’s barons were in full revolt against him. The final straw came on the 17th of May, when they seized London. Facing the loss of his capital and his precious treasury, John capitulated, and agreed to meet with leading churchmen and his barons at Windsor to stave off a full civil war.
There were several speedy rounds of negotiations, with Archbishop Stephen Langton of Canterbury shuttling between both camps. The result was a final meeting at Runnymead on the 15th of June. The document John sealed that day is lost. But in the following months his Royal Chancery sent out around 40 charters, one to each county, to be read aloud in the county courts. The document was still not yet Magna Carta, but simply known as the Charter of Liberties. Four of these 1215 charters survive: at Salisbury cathedral, Lincoln cathedral, and two in the British Library.
Of the 40 documents John dispatched in 1215, there was, of course, no one single “original” from which the others were “copied”. Each was an identical original (called an engrossment), complete with John’s great seal.
The form of the Charter of Liberties was closely modelled on Henry I’s coronation charter. But John’s document had a very different purpose. England was on the verge of a full-scale revolt. The negotiations leading to Runnymead were a last ditch attempt to stave off an outright civil war – the second in a century. The document John sealed was not a gesture of his royal grace and munificence — it was a desperate peace treaty.
In the event, the Runnymead charter failed completely in its aim. Its many solemn promises (replacement of named royal advisers, fate of specific hostages, repatriation of foreign fighters, and so on) were left unhonoured. The charter was completely dead by September 1215, not three months after it had first been sealed. Both sides had unequivocally repudiated it. The barons then renounced their oaths of homage to John and declared all-out war on him. Meanwhile, Pope Innocent III released John from his obligations under the charter on the basis that they were shameful, demeaning, and legally invalid because they had been exacted by force. The pope then excommunicated the rebels for good measure.
As the country was sucked into civil war again and the French occupied London, the Runnymead charter was forgotten – it was a failed accord, a botched attempt at finding middle ground. Yesterday’s news.
However, an unexpected turn of events would, extraordinarily, soon resurrect it. John died in October of the following year, and his nine-year-old son, Henry III, found himself wearing the crown. To prove that he would be a good king, his regents had him issue a coronation charter in 1216 at Bristol. Henry could not very well take as his precedent the skimpy coronation charters given by Henry I, Stephen, and Henry II, so he modelled his new one on John’s Runnymead charter. But whereas John’s concessions had been forced from him under pain of war, Henry III’s was back to being a noble act of royal grace and good will.
During Henry III’s long reign (1216–72), his charter was reissued or reaffirmed many times – notably in 1216, 1217, 1225, 1237, 1246, and 1265. The 1217 version is significant, because the sections relating to English forests were removed and issued separately as the Charter of the Forests. To give a name to what was left, from around 1218 onwards, it began to be called the Great Charter (Magna Carta).
The last two times Magna Carta was issued were under Edward I, in 1297 and 1300. Many of these post-1225 reissues were not because of current political tensions or the emergence of a muscular democracy, but rather to ensure that every county had access to a copy. The reason they ceased being issued after 1300 is that from 1301 the king no longer communicated through the county courts, but instead charters were read in Parliament.
So, far from being one, hallowed document, Magna Carta was in fact issued on multiple occasions by three separate kings, leaving us today with 17 physical copies.
As anyone would expect, in the process of being reissued many times, Magna Carta was updated and amended, resulting in at least four distinct versions. The biggest change came when Henry III issued it for the first time in 1216, as he removed the clauses that impinged most heavily on his royal power. For example, one of the most shameful provisions John agreed to was the establishment of a panel of 25 barons who would scrutinise his decisions. If they disagreed with his actions, they had the right, ultimately, to declare war on him. Unsurprisingly, with the threat of civil war receding, Henry III felt no need to have his powers curbed in the same way, so simply undid the provisions and jettisoned those parts of the settlement he did not like. This was no mere tinkering. By 1225, a mere 10 years after Runnymede, Magna Carta had lost a third of its words, and all of its teeth.
Not only was the charter butchered in the 1200s, but from 1828, what remained was dismembered so comprehensively that only three of its original clauses remain law today. This junking of all but a few of its sentences tells us something uncomfortable about what monarchs and Parliament truly think of Magna Carta.
It should perhaps come as no surprise that the articles of Magna Carta that do remain on today’s statute book are all so vague and undefined that they are largely legally meaningless, and would take an unusual set of circumstances to be remotely useful in any modern litigation.
The three survivors (of the 1297 Magna Carta) are a sorry sight:
1. The English Church should be free from royal interference.
2, The customs and liberties of the city of London and other cities, boroughs, towns and ports are to be respected.
3. There is to be no imprisonment of a freeman without trial at the hands of his peers and there is to be no sale of justice.
As a bulwark of the English constitution, it does not add up to much.
Church freedom is clearly an anachronism. The days are long gone when churchmen like Thomas Becket fought to free their institution from royal interference. In reality, the clause makes no sense in a post-Reformation world, where the monarch is the head of the English Church. Unless we give the clause a strained new meaning, it is utterly obsolete, as is the provision regarding the freedoms and customs of cities.
The only relevant clause is the ban on imprisonment without judgment by one’s peers. It is something we would all applaud, but even here it is not quite what it seems. It was not new. It only applied to “freemen” (so not the vast multitude of serfs bonded to their masters). And it was carefully qualified with the ability to junk it and apply instead the hopelessly vague “law of the land” – nicely leaving open the possibility for good old-fashioned direct state interference. In any event, this provision has certainly never been observed: not before Magna Carta, at its time, or since. If this clause meant anything today, we would not have people languishing in prison on remand for months awaiting trial at which many are acquitted, nor would the special powers brought in post 9/11 be constitutional.
So where does that leave Magna Carta?
The act of writing something down or making it a law does not mean it is observed. To the contrary. Under dictatorships or tyrannies, laws frequently act as a propaganda shield to be enacted then ignored. For instance, Stalin’s Constitution of 1936 contained specific detailed provisions guaranteeing numerous human rights. Certainly, the record of English monarchs for centuries after Magna Carta shows no absence of summary executions ordered on a whim – as true of Henry VIII, Mary Tudor, and Elizabeth I as of the Henrys, John, or Edward. Other strong but non-royal English rulers have also been happy to flout it. When it was shown to Oliver Cromwell, he dismissed it as “Magna Farta”. The record shows that, for most absolute rulers of England, Magna Carta was – like Parliament itself – useful window dressing, but rarely something they took seriously.
The real question surrounding our fetishisation of Magna Carta is: why, if it is so sacrosanct, have we hacked it down to three largely meaningless clauses? If it really is “the foundation of all our laws and liberties” (Our Island Story, cited by David Cameron), why have we largely scrapped it?
The reality is that Magna Carta was never intended as a key constitutional document – it was quite explicitly a peace treaty cobbled together at a time when the country was being sucked into civil war. No more. No less. But, like Alfred, Arthur, Robin Hood, Lady Godiva, and so much of our medieval past, it has been taken up and mythologised beyond recognition.
There were several speedy rounds of negotiations, with Archbishop Stephen Langton of Canterbury shuttling between both camps. The result was a final meeting at Runnymead on the 15th of June. The document John sealed that day is lost. But in the following months his Royal Chancery sent out around 40 charters, one to each county, to be read aloud in the county courts. The document was still not yet Magna Carta, but simply known as the Charter of Liberties. Four of these 1215 charters survive: at Salisbury cathedral, Lincoln cathedral, and two in the British Library.
Of the 40 documents John dispatched in 1215, there was, of course, no one single “original” from which the others were “copied”. Each was an identical original (called an engrossment), complete with John’s great seal.
The form of the Charter of Liberties was closely modelled on Henry I’s coronation charter. But John’s document had a very different purpose. England was on the verge of a full-scale revolt. The negotiations leading to Runnymead were a last ditch attempt to stave off an outright civil war – the second in a century. The document John sealed was not a gesture of his royal grace and munificence — it was a desperate peace treaty.
In the event, the Runnymead charter failed completely in its aim. Its many solemn promises (replacement of named royal advisers, fate of specific hostages, repatriation of foreign fighters, and so on) were left unhonoured. The charter was completely dead by September 1215, not three months after it had first been sealed. Both sides had unequivocally repudiated it. The barons then renounced their oaths of homage to John and declared all-out war on him. Meanwhile, Pope Innocent III released John from his obligations under the charter on the basis that they were shameful, demeaning, and legally invalid because they had been exacted by force. The pope then excommunicated the rebels for good measure.
As the country was sucked into civil war again and the French occupied London, the Runnymead charter was forgotten – it was a failed accord, a botched attempt at finding middle ground. Yesterday’s news.
However, an unexpected turn of events would, extraordinarily, soon resurrect it. John died in October of the following year, and his nine-year-old son, Henry III, found himself wearing the crown. To prove that he would be a good king, his regents had him issue a coronation charter in 1216 at Bristol. Henry could not very well take as his precedent the skimpy coronation charters given by Henry I, Stephen, and Henry II, so he modelled his new one on John’s Runnymead charter. But whereas John’s concessions had been forced from him under pain of war, Henry III’s was back to being a noble act of royal grace and good will.
During Henry III’s long reign (1216–72), his charter was reissued or reaffirmed many times – notably in 1216, 1217, 1225, 1237, 1246, and 1265. The 1217 version is significant, because the sections relating to English forests were removed and issued separately as the Charter of the Forests. To give a name to what was left, from around 1218 onwards, it began to be called the Great Charter (Magna Carta).
The last two times Magna Carta was issued were under Edward I, in 1297 and 1300. Many of these post-1225 reissues were not because of current political tensions or the emergence of a muscular democracy, but rather to ensure that every county had access to a copy. The reason they ceased being issued after 1300 is that from 1301 the king no longer communicated through the county courts, but instead charters were read in Parliament.
So, far from being one, hallowed document, Magna Carta was in fact issued on multiple occasions by three separate kings, leaving us today with 17 physical copies.
As anyone would expect, in the process of being reissued many times, Magna Carta was updated and amended, resulting in at least four distinct versions. The biggest change came when Henry III issued it for the first time in 1216, as he removed the clauses that impinged most heavily on his royal power. For example, one of the most shameful provisions John agreed to was the establishment of a panel of 25 barons who would scrutinise his decisions. If they disagreed with his actions, they had the right, ultimately, to declare war on him. Unsurprisingly, with the threat of civil war receding, Henry III felt no need to have his powers curbed in the same way, so simply undid the provisions and jettisoned those parts of the settlement he did not like. This was no mere tinkering. By 1225, a mere 10 years after Runnymede, Magna Carta had lost a third of its words, and all of its teeth.
Not only was the charter butchered in the 1200s, but from 1828, what remained was dismembered so comprehensively that only three of its original clauses remain law today. This junking of all but a few of its sentences tells us something uncomfortable about what monarchs and Parliament truly think of Magna Carta.
It should perhaps come as no surprise that the articles of Magna Carta that do remain on today’s statute book are all so vague and undefined that they are largely legally meaningless, and would take an unusual set of circumstances to be remotely useful in any modern litigation.
The three survivors (of the 1297 Magna Carta) are a sorry sight:
1. The English Church should be free from royal interference.
2, The customs and liberties of the city of London and other cities, boroughs, towns and ports are to be respected.
3. There is to be no imprisonment of a freeman without trial at the hands of his peers and there is to be no sale of justice.
As a bulwark of the English constitution, it does not add up to much.
Church freedom is clearly an anachronism. The days are long gone when churchmen like Thomas Becket fought to free their institution from royal interference. In reality, the clause makes no sense in a post-Reformation world, where the monarch is the head of the English Church. Unless we give the clause a strained new meaning, it is utterly obsolete, as is the provision regarding the freedoms and customs of cities.
The only relevant clause is the ban on imprisonment without judgment by one’s peers. It is something we would all applaud, but even here it is not quite what it seems. It was not new. It only applied to “freemen” (so not the vast multitude of serfs bonded to their masters). And it was carefully qualified with the ability to junk it and apply instead the hopelessly vague “law of the land” – nicely leaving open the possibility for good old-fashioned direct state interference. In any event, this provision has certainly never been observed: not before Magna Carta, at its time, or since. If this clause meant anything today, we would not have people languishing in prison on remand for months awaiting trial at which many are acquitted, nor would the special powers brought in post 9/11 be constitutional.
So where does that leave Magna Carta?
The act of writing something down or making it a law does not mean it is observed. To the contrary. Under dictatorships or tyrannies, laws frequently act as a propaganda shield to be enacted then ignored. For instance, Stalin’s Constitution of 1936 contained specific detailed provisions guaranteeing numerous human rights. Certainly, the record of English monarchs for centuries after Magna Carta shows no absence of summary executions ordered on a whim – as true of Henry VIII, Mary Tudor, and Elizabeth I as of the Henrys, John, or Edward. Other strong but non-royal English rulers have also been happy to flout it. When it was shown to Oliver Cromwell, he dismissed it as “Magna Farta”. The record shows that, for most absolute rulers of England, Magna Carta was – like Parliament itself – useful window dressing, but rarely something they took seriously.
The real question surrounding our fetishisation of Magna Carta is: why, if it is so sacrosanct, have we hacked it down to three largely meaningless clauses? If it really is “the foundation of all our laws and liberties” (Our Island Story, cited by David Cameron), why have we largely scrapped it?
The reality is that Magna Carta was never intended as a key constitutional document – it was quite explicitly a peace treaty cobbled together at a time when the country was being sucked into civil war. No more. No less. But, like Alfred, Arthur, Robin Hood, Lady Godiva, and so much of our medieval past, it has been taken up and mythologised beyond recognition.
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