Magna Carta - 17th and 18th Centuries

17th and 18th Centuries

Whilst Sir Edward Coke took the lead in reinterpreting Magna Carta, he was soon joined by others with a similar ideological stance, resulting in the concept of an ancient constitution—which entailed belief in fundamental laws that supposedly existed since time immemorial, and a belief in the antiquity of Parliament. These beliefs were used to challenge the constitution as it existed under the Stuart Kings.

John Selden would link habeas corpus to Magna Carta during Darnell's Case. Sir Henry Spelman, who can be largely credited with first formulating a concept of feudalism (which would ironically be later used to attack the idea of an ancient constitution, notably by Robert Brady), sought to place the origins of Common Law in Anglo-Saxon laws. Antiquarians would seek out documents to support the views of their compatriots, such as Sir Robert Cotton, whose collection of manuscripts would later form the basis for the British Library, and who discovered two original copies of King John’s Charter.

The Petition of Right of 1628 sought to add to Magna Carta in the manner of the Articuli super Cartas or the Six Statutes. Charles I however, did not grant it as law and he was under no legal restriction. The problem as before in history was that the King was not bound by the law as adherents of Magna Carta believed. As before in history armed force would be used, first in 1642–49 and again in 1689.

With the advent of the republic it was questionable whether Magna Carta still applied. John Milton called for “great actions, above the form of law and custom”. Whilst Oliver Cromwell had much disdain for Magna Carta, at one point describing it as "Magna Farta" to a defendant who sought to rely on it he agreed to rule with the advice and consent of his council.

Different radical groups held differing opinions of Magna Carta. The Levellers rejected history and law as presented by their contemporaries, holding instead to an ‘anti-Normanism’ viewpoint. John Lilburne regarded Magna Carta as being less than the freedoms that supposedly existed under the Anglo-Saxons before being crushed by the Norman yoke. Richard Overton would describe Magna Carta as a “a beggarly thing containing many marks of intolerable bondage”. Both however saw Magna Carta as a valuable declaration of liberties that could be used against governments they disagreed with. Lilburne said "the ground of my freedom, I build upon the Grand Charter of England", while Overton said that when arrested, he hung on to his copy of Coke on Magna Carta, shouting "murder, murder, murder" as they wrested "the Great Charter of England's Liberties and Freedoms from me". Gerrard Winstanley leader of the more extreme Diggers stated “The best lawes that England hath, were got by our Forefathers importunate petitioning unto the kings that still were their Task-masters; and yet these best laws are yoaks and manicles, tying one sort of people to be slaves to another; Clergy and Gentry have got their freedom, but the common people still are, and have been left servants to work for them.”

The first attempt at a proper Historiography was undertaken by Robert Brady who refuted the supposed antiquity of parliament and the belief in the immutable continuity of the law, and realised the liberties of the Charter were limited and were effective only because it was the grant of the King; by putting Magna Carta in historical context he questioned its contemporary political relevance. However, Brady’s history would not survive the Glorious Revolution, which “...marked a setback for the course of English historiography.”

The Glorious Revolution reinforced the century’s ideological interpretations of history, which would later become known as the Whig interpretation of history. Reinforced with Lockean concepts the Whigs believed England’s constitution to be a Social contract, based on documents such as Magna Carta, the Petition of Right and The Bill of Rights. Ideas about the nature of law in general were beginning to change. In 1716 the Septennial Act was passed, which had a number of consequences. Firstly, it showed that Parliament no longer considered its previous statutes unassailable, as this act provided that the parliamentary term was seven years, whereas fewer than twenty-five years had passed since the Triennial Act (1694), which provided that a parliamentary term was three years. It also greatly extended the powers of Parliament. Under this new constitution Monarchal absolutism was replaced by Parliamentary supremacy. It was quickly realised that Magna Carta stood in the same relation to the King-in-Parliament as it had to the King without Parliament. This supremacy would be challenged by the likes of Granville Sharp. Sharp regarded Magna Carta to be a fundamental part of the constitution, and that it would be treason to repeal any part of it. Sharp also held that the Charter prohibited slavery.

Sir William Blackstone published a critical edition of the 1215 Charter in 1759, and gave it the numbering system still used today.

In 1763 an MP, John Wilkes was arrested for writing an inflammatory pamphlet, No. 45, 23 April 1763; he cited Magna Carta incessantly. Lord Camden denounced the treatment of Wilkes as a contravention of Magna Carta.

Prophet of a new revolutionary age, Thomas Paine in his Rights of Man would disregard Magna Carta and the Bill of Rights on the grounds they were not a written constitution devised by elected representatives.