by Ed West
The first print edition of the Great Charter appeared, in Latin, in 1508, followed by an English translation in 1534. As the number of books published and sold rocketed in the sixteenth century, along with literacy levels, there came a new interest in the law. This period saw the growth of two conflicting ideas: firstly absolutism, which had developed out of the practical reality of monarchies becoming centralized and rulers more powerful. Its origins were in the medieval period but only took truly lunatic form in the reign of ‘Sun King’ Louis XIV of France from 1643, who built an enormous palace that he filled with enough rooms so that he could always face the sun, whatever time of day. His policies would cripple the economy, suppress free expression, and undermine the growth of civil society, while across the Channel, Englishmen smugly watched while stuffing their faces with roast beef.
In England, Elizabeth’s incomprehensible Scottish successor James I used to lecture Parliament about his belief in the divine right of kings, yet there was also a rival idea developing—that the rights of ordinary Englishmen were natural and ancient and had only been usurped by monarchs. Magna Carta would be essential to this.
Opponents of James I and his son Charles I talked of England’s ‘ancient constitution,’ and traced it through Magna Carta and further back to the Anglo-Saxon witans and forest councils of the Saxons in Germany. Some of this may have been a little on the romantic side, if not actual junk history, but it created precedents and rights that became self-fulfilling.
Certainly, the text to the Unknown Charter makes clear that the barons thought they were restoring law, rather than innovating, for in the words of one historian they ‘believed that good law had once existed and that their duty lay in recalling and restoring it. To this extent, Magna Carta is to be viewed as a deeply conservative, not as a deliberately radical, measure.’4
The most influential of these constitutionalists was the jurist Edward Coke, who saw the Great Charter as reaffirmation of ancient English rights. Coke and parliamentarian John Hampden used Magna Carta as an argument for an Ancient Constitution that the Stuarts were trying to take away. They might have used some creative history along the way; Coke thought Parliament was as old as king Arthur and even dated it back to the City of Troy where the first Britons had come from.
Coke wrote of it: ‘Upon this chapter, as out of a roote, many fruitful branches of the Law of England have sprung.’ He used Magna Carta as the basis of the 1628 Petition of Right, the proto-constitution that Parliament forced Charles I to sign. Charles refused to budge and would eventually meet a similar end to his ancestor John.
During the buildup to the civil war, parliamentarians cited Magna Carta in their (rather spiteful) impeachments against the Earl of Stafford in 1641 and Archbishop Laud four years later, two supporters of the king who were accused of conspiring to bring about arbitrary government and undermine Parliament. Likewise, the 1641 Grand Remonstrance against the Crown looked to Magna Carta as proof of Parliamentary rights. John Lilburne, leader of the radical Leveller group, talked of ‘the ground of my freedom, I build upon the Grand charter of England.’ Before the war, Lilburne had been charged with printing an unlicensed book, and it was his refusal to take an incriminating oath that would lead to the US Fifth Amendment, also known as the Right to Silence. His fellow Leveller, pamphleteer Richard Overton, was dragged to jail by his head ‘as if I had been a dead dog’ while holding onto his copy of Magna Carta, which ‘I clapped it in my arms’ until it was forced out of them. ‘And thus by an assault they got the great Charter of England’s Liberties and Freedoms from me; which I labored to the utmost of power in me to preserve and defend, and ever to the death shall maintain.’
However, the seventeenth century also saw controversy about what Magna Carta actually meant. Some historians, with justification, argued that it essentially only defended the barons and that it was irrelevant to an uprising by the House of Commons, which didn’t even exist until the reign of Edward I. And ‘ancient rights’ is something of a misnomer, for generally speaking, early medieval Europe was not a place where anyone had rights. Much of this Parliamentary historical idea was also a sort of anti-French fantasy in which the Normans took away the ancient rights of freeborn Englishmen who used to sit around a forest discussing the minutiae of lawmaking and perhaps cricket.
After Parliament won the war in 1649, the victors fell out and a strongman, Puritan-MP-turned-soldier Oliver Cromwell, ended up dismissing MPs, too, and when informed by a lawyer about ancient rights, he shouted, ‘I care not for the Magna Farta!’ Cromwell died in 1658, and two years later Charles’s son Charles II would be crowned king, but after his death his brother James II was ejected and replaced by his son-in-law, the Dutchman William of Orange (in circumstances not entirely different from those of Prince Louis in 1216). Again, Magna Carta was cited as precedent and justification, leading to the 1689 Bill of Rights, the cornerstone of the (unwritten) English constitution. The Bill of Rights confirmed English freedoms such as the right to have a reasonable bail when being tried, freedom from cruel and unusual punishments, and freedom of speech, as well as preventing royal interference with the law and, money always being an issue down the years, no taxation without royal approval.
After this, Magna Carta would continue to have great appeal to political liberals. Publisher Arthur Beardmore, a friend of radical eighteenth-century politician John Wilkes, was arrested for libeling the authoritarian Scottish minister Lord Bute in 1762, and when they came to arrest him he just happened to be teaching his son about Magna Carta; it was a contrived PR stunt, but Bute was unpopular and Beardmore was released.
America
It was partly thanks to Coke that Magna Carta was to have even more influence in the new world than it did in the old. Coke was a fervent believer in English liberties, as he set out in his book The Excellent Privilege of Liberty and Property Being the Birth-Right of the Free-born Subjects of England, polemics at the time not being known for the brevity of their titles. In America, the Puritans and other wrangling, bickering Protestant sects would make Magna Carta central to their beliefs; the Quaker William Penn first published it in the colonies in 1687.
It was Coke who helped to draft the charter of the newly established Virginia Company in 1606, which set the rules of government for the English colonies in the new world. On this continent, he wrote, there would be ‘all liberties, franchises and immunities . . . as if they had been abiding and born within this our realm of England.’ Instructions issued in 1618 by the Virginia Company to Governor Sir George Yeardley were called the ‘Great Charter’ by Virginians, and the General Assembly of Virginia became the first such Parliament in the western hemisphere.
Similar English liberties were guaranteed in the charters of the other colonies, among them Massachusetts, Connecticut, and the Carolinas. When North Carolina was established, its proprietors authorized its governor to grant land on the same terms as the Great Deed of Grant of Virginia, ‘a species of Magna Carta.’5 Puritan Massachusetts’s first emblem showed a man with a sword in one hand and a copy of Magna Carta in the other.6
Again, most of those bringing about these fundamental changes saw themselves as preserving the past rather than being revolutionaries; the worst criticism a Puritan could make was to call something an ‘innovation’ or ‘novelty.’ They were simply reviving old rights, they said, although this could just be because it is logically easier to claim to want to preserve rather than change. In fact, even Edward the Confessor, at his coronation in 1043, had sworn to uphold the law of his Viking predecessor Canute, who in turn swore to uphold the laws of King Edgar who ruled in the tenth century. Edgar probably claimed to be upholding the laws of someone even more distant before him.
The importance of Magna Carta became even greater in the debates and quarrels that followed after Britain and its colonists had kicked the French out of North America in 1763. This would lead to rebellion and independence, and the most famous slogan of the revolutionary era—‘no taxation withou
t representation’—which was following in the spirit of Clause 14: ‘And for us to have common counsel of the realm for the levying of an aid.’
When the American Constitution came to be written, it was heavily influenced by the charter, and the famous Fifth Amendment borrows from Clause 39: ‘No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.’ Likewise, the Sixth Amendment, which states that ‘the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed,’ was based on Clause 40, and uses the exact phrase, ‘lawful judgment of peers’ as appears in Clause 39.
CHAPTER FIFTEEN
Magna Carta Today
The last two centuries have seen the triumph of English-speaking ideas and armies, and the influence of Magna Carta has therefore come to grow across the world. After Britain’s victory in the Napoleonic War, France, envious of the successful and moderate political constitution that had defeated them, established its own charter in 1814, with the restored monarchy restrained by law. Belgium followed suit after that country was established for no reason whatsoever in 1830.
However, most of Magna Carta was taken off the statute books in the nineteenth century when the law was tidied up (there had never previously been one book of laws, and lots of archaic ones had never been repealed, while others contradicted one another; it was a mess). The process began in 1828, with the repeal of Clause 36, followed by seventeen of the thirty-seven clauses of the 1225 charter being swept away in 1863. Another five went in the 1880s, with the last repeals in 1966 when clauses 20–22, dealing with amercements owed to the king, were removed (not really a thing that could be of much concern in 1960s England).
Today just four clauses—1, 13, 39, and 40—are law, and they remain for emotional reasons as much as anything, as the rights within are guaranteed by subsequent laws. Clause 39 in particular remains one of the most important sentences in history.
As for the actual documents, today some four copies of the original forty from 1215 still exist: one at Lincoln Cathedral, another at Salisbury Cathedral, and two at the British Library in London, one severely damaged by fire. A further twenty-three copies of reissues made between 1215 and 1300 survive in a variety of locations, among them London, Oxford, Durham, Hereford, Washington, and Canberra. Also, in the British Library is Bishop Langton’s copy of the Articles of the Barons, which he took to Lambeth Palace, and which had been looted just before the seventeenth century Civil War. Other Magna Cartas will probably turn up; one from 1217 was only discovered and identified as such in 1989, while a copy from 1300 was found in Sandwich, Kent, in a Victorian scrapbook in 2015. Despite being badly damaged, it is estimated to be worth fifteen million dollars.1 You may have one in your attic.
When, in the autumn of 1939, the Lincoln copy was taken to New York to be exhibited at the World’s Fair, fourteen million people went to see it—no one observing the world that year could deny that the rule of law was quite important really in the scheme of things. When war broke out, the Americans looked after it, and the British Government, desperate to win over US support against the Nazis, attempted to force Lincoln Cathedral to donate that copy to the American people, as a goodwill gift—ironically exactly the sort of coercion that Magna Carta was supposed to stop.2
A generation later, after the tragic assassination of John F Kennedy, the British House of Commons honored their fallen ally with a memorial at the spot where, in George VI’s words, it had all begun. One acre of land at Runnymede was transferred to the people of the United States as a gift from the Queen and her government, and is still technically US soil. The Kennedy memorial features a quote from his inaugural address: ‘Let every nation know, whether it wishes us well or ill, that we shall pay any price, bear any burden, meet any hardship, support any friend, or oppose any foe in order to assure the survival and success of liberty.’
Magna Carta remains such an important part of American life that when in 2007 a copy of the 1297 Confirmation was sold by billionaire Ross Perot, it secured $21.3 million at auction from David Rubenstein, the founder of a private equity firm, who announced that he intended to put it on public display: ‘Today is a good day for our country,’ Rubenstein said afterwards. ‘This document stands the test of time.’
Indeed it has. In fact, Magna Carta has been quoted in a number of legal disputes in recent years, such as in the US Supreme Court in debates about the legality of detaining people in Guantanamo Bay. It came up in a 2003 debate in the British Courts over the Chagos Islanders, who had been moved from their home, their lawyer citing ‘unlawful exile’ as being contrary to the 1215 document, while it was also used this century in a case involving native fishing rights in New Zealand.
None of this is what was intended at the time. Although Franklyn D. Roosevelt said, ‘the democratic aspiration is no mere recent phase in human history. . . . it is written in Magna Carta,’ Churchill was closer when he wrote that the document was ‘the foundation of principles and systems of government of which neither King John nor his nobles dream’d.’ Whatever the mythmaking of seventeenth-century radicals, and the motives of the barons, the acceptance of Magna Carta by Crown officials after the death of King John was a crucial event that made the rule of law possible, and it led the way to the end of arbitrary government. As the twentieth-century lawyer Lord Denning put it: ‘Magna Carta is the greatest constitutional document of all times—the foundation of the freedom of the individual against the arbitrary authority of the despot.’
For that we should be grateful. As far as back as 1770 there were suggestions that June 15 be made a public holiday in England, and in recent years, the subject has come up again. It could be argued that Magna Carta Day would be a national day based on the rule of law and constitutional patriotism—good ideas that have lasted the test of time.
So each June 15, wherever you are, raise a glass to the hopelessly incompetent, cowardly alcoholic king who made it all possible.
Bibliography
This is an introduction to the subject and far more can be discovered in detail from the following:
Ackroyd, Peter. Foundation (The History of England, Volume I)
Asbridge, Thomas. The Greatest Knight
Bartlett, Robert. England Under the Norman and Angevin Kings
Bartlett, Robert. The Making of Europe
Bridges, Antony. The Crusades
Brooke, Christopher. The Saxons and Norman Kings
Carpenter, David. Magna Carta
Castor, Helen. She-Wolves
Church, Stephen. King John
Danziger, Danny, and Gillingham, John. 1215: The Year of Magna Carta
Fraser, Antonia. The Lives of the Kings and Queens of England
Gillingham, John. Conquest, Catastrophe and Recovery
Gillingham, John. Richard I
Gimson, Andrew, Gimson’s Kings and Queens
Hannam, James. God’s Philosophers
Hannan, Daniel. How We Invented Freedom
Harvey, John. The Plantagenets
Hibbert, Christopher. The English: A Social History
Hindley, Geoffrey. A Brief History of Magna Carta
Jones, Dan. Plantagenets
Jones, Dan. Realm Divided
Lacey, Robert. Great Tales from English History
Morris, Marc. A Great and Terrible King
Morris, Marc. King John
McLynn, Frank. Lionheart and Lackland
Ormrod, W. M. The Kings and Queens of England
Palmer, Alan. Kings and Queens of England
Poole, A. L. Domesday Book to Magna Carta
Schama, Simon. A History of Britain
Seward, Desmond. The Demon’s B
rood
Tombs, Robert. The English and Their History
Vincent, Nicholas. Magna Carta: A Very Short Introduction
White, R. J. A Short History of England
Whittock, Martyn. A Brief History of Life in the Middle Ages
Wilson, Derek. The Plantagenets
Endnotes
Introduction
1. Duff Hart-Davis, King’s Counsellor: Abdication and War, The Diaries of Sir Alan Lascelles.
2. Historian Ian Mortimer estimates that 90 percent of English people descend from Edward III, the great-great-grandson of King John, and on top of this millions of Europeans and North Americans—in which case there is a good chance that you do too.
Chapter 1
1. Nicholas Vincent, Magna Carta: A Very Short Introduction.
2. A. L. Poole, From Domesday Book to Magna Carta.
Chapter 2
1. Desmond Seward, The Devil’s Brood.
2. Dan Jones, Realm Divided.
3. John Gillingham, Conquest, Catastrophe and Recovery
4. Over his reign, Henry II would cross the Channel twenty-four times, spending fourteen years in Normandy, thirteen in England, and seven in Anjou and Aquitaine. He would celebrate Christmas in twenty-four different places.
5. H. M. Thomas, Shame, Masculinity and the Death of Thomas Becket, quoted in Realm Divided.
6. Simon Schama, A History of Britain.
7. Helen Castor, She-Wolves.
8. Poole, From Domesday to Magna Carta.
9. Castor, She-Wolves.
10. Antony Bridges, The Crusades.
11. Andrew Gimson, Gimson’s Kings and Queens.
12. Castor, She-Wolves.
13. Peter Ackroyd, Foundation (the History of England, Volume I).
14. Robert Tombs, The English and Their History. As Robert Tombs wrote, there were now eight hundred thousand oxen and four hundred thousand horses, which multiplied muscle over six or seven times; road density was higher than in twenty-first century, and average speeds wouldn’t improve until the eighteenth century.