What is the oldest law in England?

History Extra

Habeas corpus is, indeed, one of the most distinctive features of English law and may well be the oldest in force. The law means literally “you shall have the body”, but in practice allows any court of law to demand that any person is brought before it. Historically it has been used to stop a person being held in prison unlawfully or without a fair trial.

 Habeas corpus is often said to originate in Magna Carta, signed by King John in 1215. The habeas corpus provisions in Magna Carta were codifying an already existing procedure that dates back to the 1130s and probably to pre-Norman England.

Although habeas corpus is still on the statute book, the version now in force dates from the amended Magna Carta issued by Edward I in 1297. The oldest formally written law still in force in England is therefore the Distress Act of 1267. This made it illegal to seek ‘distress’, or compensation for damage, by any means other than a lawsuit in a court of law – effectively outlawing private feuds.

Answered by Rupert Matthews, historian and author.

Medieval English law in the time of Magna Carta

History Extra

A king and his minister doing justice, c1050. Original publication from an 11th-century manuscript. (Photo by Hulton Archive/Getty Images)
  

English law in the time of Magna Carta was based on two traditions, one going back to the time before the Norman Conquest of 1066, the other created in the 12th century. The older tradition had roots in old customs and in texts, one of which is thought to have been written between 601 and 604 AD.
A wide range of issues was covered by these early laws, including punishment for criminal activity and compensation payments for injuries. One of the kings who contributed to this legal system was Alfred, king of the West Saxons (c849–899), who laid the foundations for a united kingdom of England. The counties into which England was divided, probably since the ninth century, were administrative units under royal officials – ‘shire reeves’ – who were also entrusted with the task of jurisdiction. They convened the county courts, and it was here and in the subdivisions of the counties (of which there were hundreds) that most trials took place.
The law dispensed here was ‘customary’ law. It had been developed further through written royal laws, which are often attributed to individual rulers of the Anglo-Saxon kingdoms. Most people had to take their litigation to the county court and only members of the social elite had direct access to the king.
The second tradition, created by the legal changes in the 12th century, generated a new legal system based on royal justice. It was enforced by royal judges who were sent into the counties, where they used the traditional county courts as a forum for a gradually developing new royal law.

The jury system

Among the legal innovations was the jury, which was introduced in civil cases – mostly those about the possession of land as well as in the criminal law. Juries were supposed to be composed of well-informed people who would provide information with the promise – made before God – to speak the truth. This obligation gave them their name: jury, from Latin ‘jurare’, meaning to give an oath.
In the evolving land law, juries were used to determine questions of fact, answerable simply by ‘yes’ or ‘no’, in proceedings about inheritance or in disputes about ‘seisin’, a form of direct control of land and buildings. Was the claimant’s ancestor really the last person to be seised and is the claimant really that tenant’s heir? Had a person who had been seised of a specific piece of land been forcibly evicted without judgement?
These – and similar – procedures were popular, and part of the beginnings of a common law that was based on royal authority and which applied to all parts of the kingdom in the same way. The mechanisms of this law were first described by Ranulf de Glanvill, one of the administrators of Henry II (king of England from 1154–89), who also served as a military leader and diplomat, his career culminating when he obtained the highest office in royal service, that of justiciar.
Glanvill’s treatise, On the Laws and Customs of the Kingdom of England, reveals a pragmatic and in many ways modern legal system. During Henry II’s reign royal justice was made available to all free subjects, and since the king and his court tended to be mobile (not merely in England but also in other territories, notably Normandy), a royal law court independent of the royal household was set up in England.

_{The seal of King Henry II of England, 12th century. From the original in the British Museum. (Photo by The Print Collector/Print Collector/Getty Images)}
However, elements of the older legal tradition continued to be part of the law, for example in the criminal law. Up to 1215 proof of guilt or innocence was still by ordeal, a procedure that invoked divine intervention to determine whether the accused was responsible for the crime or not. Invariably this was a public ceremony involving a short period of fasting, a religious service and the subjection of the defendant to the actual test. In the 12th century this was very likely the ordeal of cold water: the accused would be submerged in water to see whether he would float (a sign of guilt) or sink (a sign of innocence).
Two other ordeals involved the ritual infliction of injury: that of the hot iron and that of boiling water. The first saw the defendant carry a hot iron over a distance, while the second ordeal forced the defendant to retrieve items from a cauldron filled with boiling water. In these forms the healing process determined the guilt or innocence of the accused. These ordeals required the participation of a priest, a precondition that could no longer be met when the Church decided to prohibit the involvement of priests in these ceremonies in a council held at the Lateran in Rome in 1215. The council’s decision made it impossible to continue with the traditional ordeals and an alternative had to be found. In England this led to the creation of the trial jury for criminal cases.

Magna Carta

These changes to the criminal law were not reflected in the 1215 Magna Carta, although the document contained frequent references to the law. Tenants-in-chief, those major landowners who held their property directly from the crown and their heirs, were protected from arbitrary royal demands when an inheritance was due.
Another form of protection for this elite group was King John’s promise not to grant the marriage of the heirs – and especially heiresses – of crown vassals to people below their social rank. As feudal lord the king had the right to do just that and John is known to have kept lists of heirs and heiresses whose marriage could he sold to the highest bidder.
Another clause of Magna Carta concerned the location of the royal court for pleas between private parties (common pleas) established during the reign of Henry II. It was important that litigants were able to find the venue and this was to be in a place known to all, according to baronial demands. However, the charter did not only deal with the social elite, although a baronial faction had been instrumental in forcing the king to agree to the demands. The opposition consisted of a broader spectrum of society and the interests of other groups were also considered in the document.
The privileges of London were confirmed and the commercial interests of wider communities were taken into consideration. There were to be no changes to the communities’ obligations to repair bridges – no arbitrary increase of traditional requirements to bear the costs – and royal bailiffs were not to put anyone on trial unless there were credible witnesses to the charge.

_{View of a copy of Magna Carta and seal of King John, 1900s. (Photo by Mansell/The LIFE Picture Collection/Getty Images)}


Merchants were to be secure in their business and they were to be granted free access to and from the country. The charter went even further in extending the range of social groups involved. It introduced changes to the forest law. The royal forest consisted not necessarily of woodland but of areas in which the king’s hunt was protected by imposing restrictions on landowners. This subject was so sensitive that in 1217, when a third version of Magna Carta was granted, the original document was accompanied by a separate charter only dealing with forest issues.

Modern historians emphasise that Magna Carta was an attempt to find a resolution for an acute political crisis rather than an effort to introduce long-term constitutional reform. Nevertheless the charters (Magna Carta versions of 1215, 1216, 1217 and 1225 as well as the Charter of the Forest of 1217) were an important element in the evolution of a distinctive English common law. The inclusion of specific and rather technical issues shows that the development of this law was part of a political process, a form of negotiation between a crown (with its power based on a modern and centralised administration) and different social groups who wanted a protection of their interests.


Dr Jens Röhrkasten is a lecturer in medieval history at the University of Birmingham who specialises in medieval criminal law.

8 things you (probably) didn’t know about Magna Carta

King John signs Magna Carta. © GL Archive / Alamy
History Extra
Magna Carta, which this year celebrates its 800th anniversary, is perhaps the best-known document in world history. Yet much of it is either misunderstood or clouded in myth. Here, Nicholas Vincent, a professor of medieval history at the University of East Anglia, reveals some lesser-known facts about the iconic document…

Whenever and wherever it is exhibited, thousands queue to view what Lord Denning described as “the foundation of the freedom of the individual against the arbitrary authority of the despot”. King John, the monarch who put his seal to Magna Carta, is widely regarded as the worst king in English history precisely because it was his particular acts of tyranny that led his barons to demand the charter. But did you know…

 

1) Magna Carta never once refers to the concept of democracy

Its principal beneficiary, named at the beginning of its opening clause, is not the freemen of England or the barons and knights, but ‘God’. The charter was granted first and foremost to God in order that the king could not, as he might have done with a charter granted to any of his subjects, simply repeal the charter by his own arbitrary will. Gifts once made to God could not lightly be rescinded.

 

2) In later centuries, it was argued that Magna Carta lay at the roots of such principles of English justice as Habeas Corpus and the jury system, but Habeas Corpus is a 15th-century invention, devised 200 years after Magna Carta…

… and only incorporated into Act of Parliament in the 17th century. The jury goes unmentioned in Magna Carta, which speaks merely of trial ‘by peers, and by the law of the land’. In any case, as established in the 12th and 13th centuries, juries were not supposed to decide guilt or innocence, but instead to report (‘to present’) crimes in court, with judgment delivered by the king's justices.

 

3) Far from establishing equal justice for all, Magna Carta draws clear distinctions between classes, nationalities and peoples

The charter distinguished freemen (a minority of the population) from the peasant majority. Knights are distinguished from barons, and barons from the even higher ranks of the earls.
Individual clauses of the charter distinguish between the laws of England and the laws of Wales. Two clauses call for the expulsion from England of all foreign knights and soldiers. Another imposes limits on the profits that that could be made from Jewish moneylending. Another clause, still in theory operative into the 19th century, placed a ban upon any woman accusing a man of murder, save in a case where the murder victim was the woman's husband.

 

4) As the king who granted Magna Carta, King John is sometimes described as author of the oldest legislation still in force in England. In reality, the charter sealed by John at Runnymede was a dead letter, repudiated by king and church within a matter of only 10 weeks of its issue

The version of Magna Carta received in English law was that issued a decade later, in 1225, by King John's son, Henry III. This represents a heavily abridged version of Magna Carta, shorn of more than a third of the text granted at Runnymede.
Out went various clauses that the king considered most obnoxious, including those establishing a committee of 25 barons to sit in judgment over the king. Out too went the clauses limiting Jewish enterprise and demanding the expulsion of foreigners. Most surprisingly, out went clause 14 of the 1215 charter, which in theory established the principal of ‘No taxation without representation’ by calling for a representative assembly (a forerunner to parliament) to assent to all significant new taxes.

_{A view through a magnifying glass of part of an original Magna Carta from the issue made in 1300 by King Edward l to the borough of Sandwich in Kent, which was earlier this year discovered in the archives at Kent County Council's Kent History and Library Centre in Maidstone. (Gareth Fuller/PA Wire)}

5) Even the text of the 1225 Magna Carta as received into English law was modified towards the end of the 13th century – when recited from a faulty copy – and it was reissued by the ministers of Edward I

It is this reissue that, technically speaking, became the official law of the land. Only three clauses of it remain in force today. The remaining 34 have been repealed as redundant, as a result of acts of parliament from the 1820s onwards.
Of the three clauses that still survive, one grants freedom to the church (in theory, at least, placing the church outside the normal operations of English law). The second recognises the special liberties of the City of London and other towns (no doubt of comfort to those who believe that the City and its institutions should remain self-governing oligarchies).
The third, and easily the most famous, forbids arbitrary arrest and demands trial by peers and the laws of the land. However, no definition is supplied either for the concept of ‘peers’ (ie equals) or ‘the laws of the land’ (in 1225, in most cases still unwritten). From the 1780s onwards, the newly independent United States of America looked to the 1225 Magna Carta as a guarantee of their liberties and freedoms. Beginning with South Carolina in 1836, and ending with North Dakota as recently as 1943, some 17 of the individual states voted fully to incorporate Magna Carta 1225 within their statute books. As a result, far more of Magna Carta survives in American than in English law.

6) As early as the 1290s, large parts of Magna Carta were considered either unenforceable or archaic

The charter was last renewed and reissued, county by county, in 1300. Thereafter, kings of England made regular promises to abide by the charter, but without reissuing it clause by clause. Magna Carta itself was transformed from practical law into political totem. It is as totem and symbol that it enjoyed greatest significance, underpinning the attempts by 17th-century parliamentarians, 18th-century revolutionaries, and 19th-century constitutionalists to argue that the sovereign authority, and ultimately the state itself, must abide by the rule of law.

7) Visitors to England expect to view the ‘original’ Magna Carta in one or other of the great national collections of manuscripts, most often in the British Library in London. In reality, the charter sealed by King John at Runnymede has long ago vanished

What we have instead are 23 original exemplars, each of them hand written for delivery to a particular county or town. Only four of these come from the issue of 1215 (today preserved in the archives of Lincoln and Salisbury cathedrals, and in two instances in the British Library).
Far more survive from the subsequent reissues: a single original from 1216; four from 1217; four from 1225; four from 1297, and at least six from 1300. As a result, no less than a dozen institutional collections possess original Magna Cartas – two of them outside the United Kingdom. A 1297 Magna Carta was sold to Australia (in 1953) and another to the United States (in 1983). The American original, resold in New York in 2007, fetched $21.3 million – the highest price ever paid at auction for a single sheet of parchment.

8) Despite the immense fame of Magna Carta, many aspects of the document have been little studied

In particular, between 1810 and very recent times, no attempt was made to assemble a list of its originals, let alone of the many hundreds of copies that survive. Work undertaken over the past few years has revealed many new things (for the absolutely latest discoveries see the website magnacartaresearch.org).
As recently as December 2014, an entirely unknown original of the 1300 Magna Carta was brought to light in the archives of the borough of Sandwich in Kent. At much the same time, researchers proved that one of the originals of the 1215 Magna Carta – today in the British Library – previously supposed to have come from Dover Castle, in fact originated in the archives of Canterbury Cathedral.
Documents in the National Archives have revealed that in 1941 Winston Churchill seriously entertained the possibility of gifting Lincoln Cathedral's Magna Carta to the people of America. As late as 1976, a similar proposal was raised – this time by Winston Churchill's grandson, and in respect to one of the British Library's Magna Cartas – intended as a ‘centre-piece’ for British celebrations of the bicentennial of America's declaration of Independence.
Magna Carta: Law, Liberty, Legacy is on show at the British Library, London, from 13 March–1 September 2015. For more information, and to book tickets, visit www.bl.uk