Magna Carta is still relevant for the rule of law, observes David Pearson

Guest blogger David Pearson shares his thoughts on the significance of the 800th year anniversary of the Magna Carta.

Magna cartaThis weekend marks the 800th anniversary of the sealing of the Magna Carta at Runnymede by King John on 15thJune 1215. On 14th June church bells will peel across the land to celebrate the occasion. (That happens to be my birthday so I’ve told my lunch guests that I’ve arranged the bell ringing in my honour.) Magna Carta was effectively a peace treaty between King John and the Barons who opposed him to avoid a civil war.

Most of its 63 clauses constitute a deal restoring or granting rights to the Barons. King John had no intention of honouring these clauses and within eight weeks had persuaded Pope Innocent III to annul it.

So why has it come to be so significant in world affairs? And how have so many myths grown up around it?

The object itself is a piece of sheepskin inscribed with oak gall and sealed with beeswax and resin. It consists of some 4,000 words in abbreviated medieval Latin. We think that 13 copies were made and despatched to various cathedral cities to proclaim the document across England. Of these just four survive, two in the British Library in London, one in Lincoln and one in Salisbury Cathedral.

This year I have seen three of the four. I went to the excellent exhibition at the British Library ‘Magna Carta: Law, Liberty, Legacy’ and also went to Lincoln for a weekend with the Marketors. Its copy is now on display in Lincoln Castle although it remains the property of Lincoln Cathedral. I heard the Bishop of Salisbury deliver a sermon at the United Guilds’ Service at St Paul’s Cathedral in which he took the opportunity of extolling the virtues of Salisbury for a visit. There is still time in this anniversary year.

Let’s deal with some of the mythology. King John has come down through history as an unredeemed tyrant.

In fact he was an able administrator and in contrast to his brother King Richard at least spent considerable time in his kingdom travelling the length and breadth of it to deal with the issues of the day.

Richard has come down in history as a romantic hero, Richard the Lionheart, and is commemorated by a magnificent statue in Parliament Square. In his ten years on the throne he only spent six months in England.

The rest was spent on crusades where he committed appalling atrocities. On his return he was stupidly kidnapped and his ransom was set at £200,000 – roughly the equivalent of 10 years’ national income. (In the UK today the equivalent cost might be £6.5 trillion.) John was a poor soldier compared to his brother and this is one reason why he was despised. In those days barons respected a strong war leader even if they had to pay for his wars. John did win one notable sea battle and effectively founded the Navy.

In the Middle Ages kings needed to be strong to maintain rule.The barons who opposed John were by no means in the majority. There were about 200 men of noble rank but they were divided and self-serving. Some 50 opposed John while 50 supported him. The remaining 100 were wavering and so the agreement reflects a spirit of compromise as neither side wanted to upset the waverers.

The Charter was not the first.

William the Conqueror’s son Henry I had published the Charter of Liberties when he came to the throne in 1100, “to persuade the barons that he would behave more reasonably than his horrible brother William Rufus had done.”

Liberties referred to in this way do not mean Liberty from oppression and such like but rather the liberty to perform actions, charge tolls etc.After John reneged on the charter, the barons invited Louis, son of the king of France, to take the English crown. John marched towards the north where many of the barons’ estates lay.

Disaster fell, first when his servants lost his treasure while crossing the treacherous land of the Wash. Then John contracted a fever either from cider or peaches and died a few days later.His son, Henry III was nine and so one of the loyal barons, William Marshal became regent. He reissued the Magna Carta with some variations as a shrewd way of establishing the boy king’s credentials. Then in 1217 Louis was paid off in a peace settlement that also involved the reissue of the charter. At the same time a charter was issued governing the royal forest.

It was in February 1218 that the name ‘Magna Carta’ first appears in order to distinguish the ‘Great Charter’ from its shorter forest brother. Then when Henry came of age in 1225 he reissued the Charter, again with some revisions.

This time the charter was given in return for some tax concessions. It was freely given rather than under coercion. In 1297 in the reign of Edward I the charters were recorded officially for the first time on the Statute Roll.In a modern English translation the charter covers about ten pages in one book I have. The numbering of the clauses came later.

Many of the clauses relate to very specific issues of the time such as the expulsion of foreign agents that King John had brought in to help him run the kingdom. These men are named in person. Only three of the clauses are still in operation today.

One of these, the first in the charter, states that ‘the English Church shall be free’. The charter was drafted by the Archbishop of Canterbury, then a papal appointment, so the clause means that the Catholic Church of England is free from royal interference. Today it is taken to mean the opposite, that the Church of England is free from papal interference and is under the monarch!But the clause that has become the most significant is clause 39.

“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we (i.e. the king) proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.” This clause has come to mean many things that it did not actually mean.

It did not establish the right to trial by jury, for juries were already used extensively. It did not establish the principle of habeas corpus, which originally stems from the Assize of Clarendon, a re-issuance of rights in the reign of Henry II, John’s father. As it is limited to Freemen, probably no more than 1% of the population at this time, it certainly did not establish the principle of equality before the law.

Magna Carta is not an embryonic constitution. It says nothing about democracy. But it does establish the principle that the king is subject to the rule of law.

This clause was further strengthened in 1354 with the words “no man of whatever estate or condition he may be”shall be punished “except by due process of law.” Thus the privilege was extended from the minority of free men to include all men, but sadly not women, and the famous phrase “due process of law” was first coined, which would become the currency of many a constitution.

The Stuart kings, James I and Charles I, challenged this because they believed that their authority came direct from God. Parliament could not accept this and the struggle between the two forces eventually led to Civil War and the decapitation of Charles I. The great jurist, Sir Edward Coke invoked clause 39 in his opposition to the Crown.

The charter had largely disappeared from view but Coke used the charter to justify the limitations of royal authority. Magna Carta became the basis of the Petition of Right, the proto-constitution that Parliament forced Charles I to sign.

But once Parliament was clearly established as the supreme authority in England its members lost interest in constitutions preferring the principle of interpretation. Such differences live on today in the arguments over the European Human Rights Legislation.

But the spirit that inspired Coke similarly inspired those citizens in the American colonies who likened the ‘tyranny’ of King George III to that of King John. Even the founders of the first colony, that of Jamestown founded in 1607, had carried with them a copy of Magna Carta to claim the continuing natural rights of Englishmen.

The 13 original colonies all adopted some part of Magna Carta in their constitutions.  The Massachusetts Assembly in the 18th century, protesting against taxation without representation, said that the Stamp Act was “against the Magna Carta and the natural rights of Englishmen and therefore according to Lord Coke null and void.”

Much of what Coke had said had been nonsense but his words would now be quoted as authority for the Declaration of Independence, the Constitution and the Bill of Rights, the birth certificates of the new nation of the United States of America.

The Constitution as first written is largely a job description establishing the balance between legislature, executive and judiciary, with little reference to rights. James Madison was given the task of writing a bill of rights which were then added to the Constitution as the first ten amendments, really additions.

The 5th Amendment is based on Clause 39 of Magna Carta, though with the same drawbacks as the original as “no person” did not apply to women and slaves who were both seen as chattels in law nor to Native Americans. It needed a violent Civil War, the women’s movement and the civil rights movement to go some way to correcting this.

Magna Carta is often cited in the US Supreme Court, over 400 times in the 20th and 21st centuries. It was almost the nemesis of President Clinton when he was indicted in the Paula Jones case. His lawyers argued that as President he should not have to deal with such issues but the federal district judge stated that as in the case of Magna Carta even the sovereign is subject to God and the law.

Magna Carta has gone global.

It forms part of the constitutions of Australia, Canada and India. After the Second World War it was taught as part of the civic programmes in schools in Germany and Japan.

Following the adoption of the Universal Declaration of Human Rights by the United Nations General Assembly on 10th December, 1948, Eleanor Roosevelt, Chairman of the UN Committee on Human Rights declared in a speech to the Assembly that, “this Universal Declaration of Human Rights may well become the international Magna Carta of all men everywhere.”

Magna Carta in its symbolic form has inspired Churchill and Roosevelt to write the Atlantic Charter. It was employed by Commonwealth subjects, not least by such figures as Mohandas Ghandi and Nelson Mandela, as a symbol of the rights of the oppressed to resist their oppressors.

According to Lord Denning, whom I remember from my days as a law student as arguably the greatest English jurist of the 20th century, this is a document that guarantees ‘the freedom of the individual against the arbitrary authority of the despot’.

Yet Magna Carta never once uses the word ‘freedom’. Another great English jurist, Lord Bingham may have got it more accurate when he wrote ‘the significance of Magna Carta lay not only in what it actually said but, perhaps to an even greater extent, in what later generations claimed and believed it had said. Sometimes the myth is more important than the actuality.’

I mentioned that only three of its clauses remain extant. Clause 13 states “The city of London shall enjoy all its ancient liberties and free customs, both by land and by water.” William the Conqueror never fully conquered the city of London, protected as it was by its immense Roman Wall.

Instead he and his successors came to an uneasy truce. In 1189 Henry II imposed a Lord Mayor on the City. This was greatly resented and following Magna Carta the Liverymen of the great Livery Companies gained the right to elect their own Lord Mayor and Sheriffs.

We still have that right and I will exercise it this Midsummer Day when along with about a thousand others in the Guildhall I will add my voice to those supporting the candidates for the positions of Sheriff. Then again on Michaelmas Day we will be there again to elect the new Lord Mayor.

We can all be proud of the 800 year myth of Magna Carta. It may be our greatest export.


Sources: Magna Carta: the Making and Legacy of the Great Charter Dan Jones. Head of Zeus 2014
Magna Carta: Law, Liberty, Legacy ed. Claire Breay & Julian Harrison. British Library. 2015
Magna Carta in 20 Places Derek J. Taylor The History Press. 2015

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