Magna Carta
When King John and a powerful group of his churchmen and barons met at
Runnymede in June 1215 they could never have imagined that the Charter
they sealed would be remembered 800 years later. Quite rightly: it is
extraordinary that we should remember it not only as an interesting detail
of medieval politics, but as a document, and an event, that still counts for us
in the 21st century, not only in England but far beyond.
Partly this is because of the nature of England’s history: its continuity, never
since 1066 completely broken by revolution or conquest, means that we can
trace our institutions back over the centuries. The story we have long told
ourselves about that history is that was largely about the assertion of rights
and liberties against tyranny - a view of history still very strong in the United
States, where Magna Carta is equally revered as one of their founding
documents.
Is this justified? The Charter has been praised over the centuries, but also
debunked - a mere feudal relic, an expression of baronial privilege, of no real
relevance to modern times. So let us look at the basics. What was the
Charter? Why was it drawn up? Broadly, it came about due to a crisis of the
post-Conquest monarchy, which was far more powerful and centralized
than its Anglo-Saxon predecessor. The link with Normandy and the
inheritance of Aquitaine in 1154 drew England into European politics. An
ensuing struggle with the kingdom of France, which seized Normandy in
1204, led to a desperate ten-year effort by King John to raise money in
England to regain Normandy, using and abusing his powers to extort
taxation. But he and his allies were defeated by the French in 1214, and this
fatally weakened him back in England. The Church, the barons, and the City
of London led armed resistance to John, to force him to accept that he too
was subject to the rule of law, that he owed justice to his subject, and that
he must consult them, especially over taxation. Tacked on to these
fundamentals was a miscellaneous list of other issues- concerning fish-weirs
in the Medway, ‘in what case a Praecipe in Capite is not grantable’and so on;
but overwhelmingly the Charter is about of rights, liberties, and justice.
There is no theory, no ideology – just concrete, practical rules for
government.
Charters between rulers and subjects were common. At about this time,
there were several in France and Spain that in some ways resembled, and
preceded, Magna Carta - the Charter of Catalonia (1205) or the Statute of
Pamiers (1212), for example, given by Simon de Montfort the elder, which
prohibits the sale of justice, and gives rights to heirs and widows – and
which might partly have inspired Magna Carta, which also promised those
very things. But Magna Carta was different, and it was to have a very
different future. First, it was permanent. Second, it covered the whole
kingdom. Third, it concerned everyone: not only barons and clerics, but ‘all
freemen’, and with some rights recognized for everyone, including women.
One expert has argued that the Latin word ‘homines’ meant not just ‘men’,
but ‘people’. To quote the charter’s actual words:
The men [or ‘people’] of our realm shall have and hold all the
aforesaid liberties, rights and concessions , well and peacefully, freely
and quietly, fully and completely, for them and their heirs of us and
our heirs in all things and places for ever.
The first version of the Charter also included a committee of barons to force
the king to keep its provisions, and also an oath to uphold the Charter to be
taken by the whole ‘community of the realm’ - a key phrase, which included
everyone.
King John almost immediately renounced the Charter and got the Pope to
condemn it, and this led to civil war, to French and Scottish intervention,
and it looked for a time like putting a French prince on the English throne as
Louis I - quite a thought! But John died in 1216, his young son was
proclaimed Henry III, and things calmed down. A modified version of the
Charter was reissued in the new king’s name, and thereafter was regularly
reissued, copied and circulated throughout the kingdom in large numbers
(my college found a 14th century copy recently in its archives, bound up with
documents concerning bread and ale). So it was not only, or even mainly,
what happed in 1215 that counted, but what happened afterwards, as the
Charter was repeatedly read out and invoked by ordinary people as well as
by lawyers in following centuries.
But this was only the start of the Charter’s long story. Indeed, it became for
a long time less important, being overtaken by other statutes and common
law practices - for example, the adoption of trial by jury, and the use of the
writ of habeas corpus (protecting against detention without trial). During
the 15th and 16th centuries, Magna Carta seems to have been largely
forgotten. But it revived during the early 17th century, during the reign of
James I and Charles I, and this is really a reinvention of the Charter, arguably
more important than its original creation. The original Charter was not a
coherent statement of political theory: but it inspired political theories in
later centuries. It was recreated by lawyers and politicians - particularly the
choleric Chief Justice and MP Sir Edward Coke- to contest the prerogative
rights of the Stuart kings, drawing on Roman Law, and the Charter was now
given a new and powerful interpretation. It was no longer seen as a
compromise deal between King John and his barons, but as the resurrection
of an ‘ancient constitution’ believed to have been already there in the days
of the Anglo-Saxons, and suppressed temporarily by the Norman Conquest.
Magna Carta was, Coke declared, in its ‘great weightinesse and weightie
greatnesse’, the very ‘fountaine of all the fundamentall lawes of the realm’
and a ‘restitution of the common law’. This idea became very powerful: that
there were rights, political and legal, that were inherent in being English,
and which had been given by no individual, and therefore could be taken
away by no individual - namely, in this case, by James I. Magna Carta thus
became the keystone of what was seen as a fundamental law, a constituting
document of the nation. This became a remarkably consistent theme of the
English political imagination. An 18th century French commentator observed
that
there was a far greater probability of success in raising among the
English people the notions (familiar to them) of long-established
customs, than in arguing with them from the no less rational, but less
determinate and somewhat dangerous doctrines concerning the
original rights of Mankind. [deLolme, Pall. 5-6]
After being invoked by opponents of the Stuarts, the Charter influenced the
1689 Bill of Rights, which a leading politician called ‘our second Magna
Carta’ [Pall p 41]. Eighteenth-century radicals, such as John Wilkes and
Thomas Paine, and their American counterparts, used Magna Carta to argue
against the ruling establishment; and the Charter continues to be cited in
the American Supreme Court today. Nineteenth-century democrats, such as
the Chartists (advocates of a democratic ‘People’s Charter’) echoed the idea
of an ‘ancient constitution’. It was a powerful and attractive idea because it
was not a request, a plea, to be given rights by the ruling elite: it was an
insistence that those rights already existed, but had been wrongly taken
away. Radicals thus denied the very legitimacy of the established system.
Magna Carta combined both radicalism and patriotism - it enshrined the
rights of what were habitually termed ‘true-born Englishmen’.
The Déclaration des Droits de l’Homme et du Citoyen was significantly
different. France had no comparable belief in traditional rights or an ancient
constitution that was the birthright of all Frenchmen: necessarily therefore,
it had to draw on ideas of ‘natural rights’ as opposed to inherited rights, and
thus it had a universal significance that Magna Carta never claimed. The
American Declaration of Independence and Bill of Rights had somehow
combined the ideas of birthright and universal rights. The French
Revolution drew more heavily still on abstract principles - though there is
arguably some tension between universalism (the Rights of Man) and
particularism (the rights of the Citizen). But in both cases, the French
revolutionaries (while apparently consulting Thomas Jefferson) were
conscious of doing something new - a very shocking idea to medieval
thinkers, and even to Edmund Burke, who revived the idea of traditional
rights in contrast to the ‘fairy land of philosophy’ he condemned in the
French Revolution.
That summarizes, very briefly, the history of Magna Carta. But in celebrating
it, we must not forget one very obviouscautionary reflection: the invocation
of Magna Carta as a source of rights has often, indeed usually, been
ineffective. King John renounced it. Henry VIII ignored it. The Stuarts were
defeated not by words and argument but by two revolutions. The American
patriots needed bullets as well as declarations; moreover their declarations
of their own freedom helped neither dispossessed native Americans nor
enslaved Africans(‘the loudest yelps for freedom’, sneered Samuel Johnson,
‘come from the drivers of slaves’). The Chartists failed to get their ‘People’s
Charter’ and democracy came to Britain only in the aftermath of the First
World War - seven centuries after Runnymede.
Moreover, there is a deep ambiguity, even a contradiction, at the heart of
our political history. On one hand, in Magna Carta, there is the vision of
what Pitt the Elder called ‘the bible of the English constitution’, with its core
of inalienable inherited liberties, based on the notion of fundamental law
derived from an ‘ancient constitution’. On the other hand, we have the
contrary idea of a sovereign parliament which can never be bound by the
acts of its predecessors, and which can do anything: as the great nineteenthcentury constitutional lawyer Dicey defined it:
Parliament … has, under the English constitution, the right to make or
unmake any law whatever; … no person or body is recognized by the
law of England as having a right to override or set aside the legislation
of Parliament.
We can see this in the case of habeas corpus, a traditional common law
procedure protecting against arbitrary detention; in 1679 parliament passed
a Habeas Corpus Act, giving it statutory force - but this meant, ironically,
that parliament gave itself the power, which it has used in emergencies, of
suspending Habeas Corpus and permitting detention without trial. In short,
parliament, not Magna Carta or an ‘ancient constitution’, decides what our
rights are: and in recent years parliament has contemplated extended
periods of detention, and restricting trial by jury in some criminal cases - two
things that most people would probably consider the heart of Magna Carta.
So is Magna Carta just a myth, and is its celebration merely sentimental
nostalgia, or worse a smokescreen concealing reality? So it has often been
in the past, and so it arguably is now. But ‘myth’ is nevertheless important:
it helps to shape people’s deepest feelings and instincts about what is right
and permissible. Throughout its history, Magna Carta has indeed been a
myth of this kind, but a powerful myth. It convinced people that they had
rights - and this is not, even now, a self-evident idea. It convinced people
that their rulers could not do as they wished - again, even now not selfevident. It made rulers themselves cautious - even today, no British or
American politician would dare to say openly that Magna Carta was an
archaic feudal relic whose principles they intended to ignore. So certain
basic ideas entered the culture: ideas about justice, about people’s rights,
about the duties of rulers. These ideas, wrote Edmund Burke, became
‘engraved in the hearts of Englishmen’.
To shape the visceral culture of politics and law as Magna Carta did is hugely
important: a general belief that some things must be done and others must
not be done is one defence - perhaps the most solid defence we have against the abuse of power: ‘to no man will we sell, to none deny, or delay
justice or right’. But even accepting certain principles as inviolable, though
important, is not enough, as again the history of Magna Carta repeatedly
shows: the mere existence of charters and laws is only part of the story.
People have to be willing to invoke them, to use them as weapons, as the
brave, cantankerous and probably pretty unbearable Sir Edward Coke did
against James I. This does not always work: but no law, no declaration, no
system of jurisprudence is perfect or perfectly effective. Feelings, after all,
are sometimes stronger than institutions–feelings are sometimes the best
things we have. Celebrating these feelings, these myths if you like about the
rights and justice enshrined in the Charter, as we are doing now,
strengthens them. Or so I hope.
Let me finish by recalling briefly the main points of what happened 800
years ago. The king, the source of law and sovereignty, was forced to
accept that he too came under law, that his powers were limited, that he
had to do justice, that the participation and consent of the people was
required for government, that all people had some rights, and that there
was a ‘community of the realm’ made up of all its people, and not merely a
royal dominion over passive subjects. Moreover these rights were
conceded ‘to all men, in all places, forever’. Not all of this was new or
unique, but as a whole it was, and it was realized to be. John soon
renounced the Charter - but his people didn’t, and his successors had to
accept and reissue it. And it was kept alive over the centuries as a
conviction that somehow there existed a source of rights - an ‘ancient
constitution’ - that had always been there, and did not depend on the will of
any monarch or parliament, who therefore could not legitimately take them
away.
Later centuries, and other countries, had different ways of expressing this
idea: that divine law, or natural law (as in the French Revolution), or
international agreement, laid down what human rights were. I’m not sure
that these ways have been more effective - or even as effective - as that
intellectually primitive and rather incoherent sheet of parchment sealed at
Runnymede 800 years ago.
Professor Robert Tombs