These fourteenth-century statutes were also central to the sixteenth- and seventeenth-century interpretation of the Charter. Some Tudor chroniclers, it is true, engaged in a brief rehabilitation of King John, largely as a result of his struggles with Pope Innocent III, which seemed to presage Henry VIII’s split from Rome. As late as 1611, the historian and cartographer John Speed could be found complaining of the indignities John had had to suffer at the hands of the barons in 1215: ‘Thus one of the greatest soueraigns of Christendom was now become the twenty-sixth petty king in his owne Dominions … What marvaille if high disdain herof pierced his swelling heart and filled his minde with reuoluing thoughts, how to vnwinde himself of those seruile fetters.’15 However, by the early seventeenth century Magna Carta was generally being invoked to protect the privileges of Parliament and the liberties of the subject from royal encroachment. The Edwardian statutes were referred to by the defending counsel in the Five Knights Case of 1627, which challenged Charles I’s resort to imprisonment without charge. The civil lawyer and MP John Selden said that ‘the [Edwardian] statute is not to be taken to be an explanation of that of Magna Charta, but the very words of the statute of Magna Charta’. It was to these ‘six statutes’ that Sir Benjamin Rudyerd was referring when he talked about Magna Carta ‘walking abroad’ in the wake of the Petition of Right (1628), an indictment of Charles’s actions itself modelled on the example of the Charter.16
So, although Coke lifted English panegyric on the Charter to new levels, he was building upon a centuries-long tradition that saw it guarantee legal due process, prohibit arbitrary imprisonment and promise equality before the law. However, in the 1620s, the parliamentary opposition to Charles I applied the Charter not only to the issue of imprisonment without charge, as in the Five Knights Case where five leading gentlemen were gaoled for failing to pay a forced loan to the King, but also to attack taxation without parliamentary consent, a line of argument that also led these commentators to suggest that the Charter guaranteed the existence of Parliament. Sir Henry Spelman and John Selden claimed this from a study of chapter 14 of the Charter:
For obtaining the common counsel of the kingdom concerning the assessment of aids … or of scutage, We will cause to be summoned, severally by Our letters, the archbishops, bishops, abbots, earls, and great barons; We will also cause to be summoned, generally, by Our sheriffs and bailiffs, all those who hold lands directly of us, to meet on a fixed day … and at a fixed place.17
The ability of the Charter to appear all things to all men was demonstrated by its use as a totem by a succession of radical movements from the seventeenth century to the nineteenth. The seventeenth-century radical group, the Levellers, were once portrayed as making a firm break from the practice of employing political arguments based on appeals to history and legal precedent. Figures such as the leading Leveller John Lilburne believed that the Conquest of 1066 meant that much English law represented an oppressive ‘Norman yoke’ upon the people.18 Certainly, some seventeenth-century radicals, including a number of Levellers, did reject the appeal to English history, and in particular the notion of the year 1215 as the fount of liberty.19
However, the actual response of the Levellers to the past was less uniform than this and demonstrated a more complicated understanding of what the Conquest had meant for English law and the survival of an ‘ancient constitution’. The importance of the Charter to Leveller rhetoric was particularly evident in John Lilburne’s A Copy of a Letter to a Friend (1645), which supported the attack on Charles I’s ‘evil counsellors’ Archbishop William Laud and Thomas Wentworth, Earl of Strafford, because they ‘trod Magna Carta … under their feet, and indeavoured to rule by their own wills, and so set up an arbitrary government’.20 Lilburne was an expert at turning his own struggles with the legal authorities and his stretches in prison into a grander narrative about the threat to English liberties, and to Magna Carta in particular:
I am a freeman yea a free-born Denizen of England … and by virtue of being a free-man, I conceive I have as true a right to all the privileges that doe belong to a free-man, as the greatest man in England, whatsoever he be … and the ground and foundation of my Freedome, I build upon the Grand Charter of England.21
The ‘Agreement of the People’, debated at Putney in 1647, which constituted the Levellers’ own projected settlement for a civil-wartorn England, might be seen as the group’s attempt to forge their own Magna Carta, but this time between the people and Parliament rather than the King and the barons.
Magna Carta formed an important part of the Whig case against the Catholic James II during the Glorious Revolution. In his declaration of October 1688, William of Orange appealed to the Charter, stating that James’s expulsion of the president and fellows of Magdalen College was ‘contrary to law, and to that express provision in Magna Charta, That no man shall lose life or goods [the freehold of the university fellowships] but by the law of the land’.22 Yet, at the beginning of the eighteenth century, it was increasingly Tories rather than Whigs who resorted to the Charter to defend a constitution that they felt was threatened by a Walpoleian oligarchy. As the court Whigs worked to ensure the passage of the Septennial Act in 1716, replacing the Triennial Act of 1694 which guaranteed regular elections, Archibald Hutcheson, lawyer and Tory MP for Hastings, complained that if the bill passed, ‘May we not in the same way of reasoning, give up the Habeas Corpus act, and all the other privileges and immunities, which have been obtained to the people from the crown, from the date of Magna Charta to this very day?’23 These Tory defences, ironically, led court Whigs into adopting many of the arguments of the Tory historian Robert Brady, who had attacked the notion of an ‘ancient constitution’. The Whig Daily Gazetteer dismissed the editor of the Tory Craftsmen as ‘an historical Idiot’, and reminded its readers that Magna Carta, far from being a reassertion of former liberties, was ‘only an Exemption of a Few great Proprietors of Land from some Hardships they lay under on Account of their conditional Tenures’: it made no difference to the majority of the English people, who were ‘as much Hewers of Wood and Drawers of Water, as truly vassals and Slaves after, as before this Great Charter’.24
The adoption of this very narrow reading of the Charter by the political establishment marked supporters of the broader, Cokeian, version with a badge of dissent. The Charter came to public prominence again in the case of John Wilkes, the populist politician, journalist and sympathiser with the American colonists (if not an English advocate of American independence, as he is sometimes portrayed). Wilkes had got into trouble with the authorities for attacks on the ministry of Lord Bute in his political weekly the North Briton, in particular for an attack on George Grenville, Bute’s successor as Prime Minister, for ‘making’ George III deliver a King’s Speech praising the recent peace concluding the Seven Years War with France. Wilkes, like John Lilburne, used the language of Magna Carta to turn his own individual tribulations into a larger struggle between liberty and tyranny:
the liberty of all peers and gentlemen and what touches me more sensibly, that of all the middling and inferior set of people, who stand most in need of protection, is in my case … to be finally decided upon; a question of such importance as to determine at once, whether English liberty be a reality or a shadow.25
Wilkes has sometimes been dismissed as a shabby populist demagogue, and his attachment to the Charter, like his attachment to the cause of ‘Liberty’, no more than a flag of convenience. Yet in the late eighteenth century veneration of the Charter was key to radical arguments for parliamentary reform, to which Wilkes remained committed even when he had achieved some political respectability towards the end of his life. Moreover, it was suggested in the anonymous Historical Essay on the English Constitution (1771) that ‘a day of public thanksgiving, festivity and joy’ be instituted ‘as an annual and perpetual reminder of England’s deliverance from tyranny in 1215’.26 The Charter was then revived as a symbol of English – and imperial – freedom by the defenders of the Ame
rican colonies. As in the early seventeenth century, it was employed as a device to protect individuals from taxation without representation. James Burgh, the Scottish educationalist and associate of ‘friends of liberty’ such as Richard Price, Joseph Priestley and Benjamin Franklin, declared that ‘if the people of Britain are not to be taxed, but by parliament … does it not directly follow, that the colonists cannot, according to Magna Charta, and the bill of right, be taxed by parliament, so long as they continue unrepresented?’27
As some English reformers began to look for their inspiration not only across the Atlantic to North America, but also over the Channel to revolutionary France, the freedoms grounded on Magna Carta started to seem too limited. Thomas Paine, the foremost English radical writer of the revolutionary era, rejected the appeal to the past. In fact, Paine argued, the Charter was detrimental to English liberty, as ‘rights are inherently in all inhabitants; but charters, by annulling those rights in the majority, leave the rest, by exclusion, in the hands of a few’.28 Paine’s rejection of an appeal to a historic constitution was a rather unusual stance among British ‘friends of liberty’. Most British radicals continued to look to Magna Carta for support against the increasingly draconian measures taken by the government. Members of the London Corresponding Society attacked the legal abuses of their day on grounds of clauses 14 and 29 of the Charter:
The various methods [the suspension of the Habeas Corpus Act] now in constant practice by which the benefits of [clause 29] are totally defeated and destroyed, might induce us to suppose, that the Great Charter has been repealed: if we did not assuredly know, that it is the fundamental basis of our constitution; which even the real representatives of the people (much less the miserable nominees of Helstone and Old Sarum [infamous ‘rotten boroughs’*]) have not the right, nor … the power to repeal.29
Even in the nineteenth century, despite radicals’ increasing concern with social and economic rights and the growing influence of Marxism on radical interpretations of history, the political importance attached to the Great Charter remained undiminished. Chartists did not shirk from drawing expansive claims from its text. At a huge (250,000-strong) rally on Hartshead Moor in Yorkshire in 1838, the Reverend Joseph Rayner Stephens declared, ‘We stand upon our rights – we seek no change – we say give us the good old laws of England unchanged’, and when he received the shout of ‘Magna Charta’ to his question ‘What are these laws?’ he replied, ‘Aye, Magna Charta! The good old laws of English freedom – free meetings – freedom of speech – freedom of worship – freedom of homesteads – free and happy firesides, and no workhouses.’30 For nineteenth-century advocates of women’s suffrage such as Richard Pankhurst, husband of Emmeline, the future suffragette leader, Magna Carta was also a vitally important document. For Pankhurst, the fact that its provisions were held to apply equally to men and women indicated that other statutes, namely those covering the franchise, should be interpreted in the same way. Magna Carta was even cherished by English socialists. The artist, designer and revolutionary William Morris, writing in the late nineteenth century, described it as that ‘great, thoroughly well-considered deed’, but argued that it could be seen only as ‘the Foundation of English Liberty’ on the grounds that it was the ‘confirmation and seal of the whole feudal system in England’.31
On into the twentieth century, the Charter continued to be commemorated as the quintessence of British freedoms. The 750th anniversary in 1965 saw national celebrations, including televised special services in Westminster Abbey: the Archbishop of Canterbury, Michael Ramsey, with no trace of irony, delivered a sermon before his hereditary monarch on the egalitarian lesson that the Charter delivered that ‘each single man has rights because God made him in his own image with an infinite worth for all eternity’.*32 The same year the Society for Individual Liberty, a pro-capitalist, libertarian organisation formed by Sir Ernest Benn (uncle of Tony) and the sugar baron Lord Lyle, held a ‘thirteenth-century feast’ in honour of the Great Charter, with food ‘served by wenches from the Elizabethan Rooms’. The chairman of the Society, Sir Ian Mactaggart, a company director, stated that its aim was to ‘combine the dignity of an important occasion with as much fun as possible for ordinary men and women’.33 Entertainment was provided by ‘jousting, wrestling and feats of strength’ performed by members of the ‘Mayfair Gymnasium and Tough Guys Stage and Film Agency’, displays of Morris, sword and folk dancing, fireworks and a ‘best wench’ contest.34
*
Magna Carta’s influence has been felt far beyond the shores of the British Isles. The wording of the Great Charter, especially chapter 29, has entered into the constitutions of many other states and countries. The Virginian Declaration of Rights framed on 12 June 1776 closely follows chapter 29 in its article VIII:
That in all capital or criminal prosecutions a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favour, and to a speedy trial by an impartial jury of twelve men of his vicinage, without whose unanimous consent he cannot be found guilty; nor can he be compelled to give evidence against himself; that no man be deprived of his liberty, except by the law of the land or the judgement of his peers.
This in turn reappeared in somewhat different form as the Fifth Amendment to the Constitution of the United States. Chapter 29 of the 1225 Charter is also represented in article 21 of the Indian Constitution of 1950, in the 1960 Canadian Bill of Rights, the Pakistan Constitution of 1956 and the Malaysian Constitution of 1963.35
The Charter is not only venerated in the UK. A copy of it holds pride of place in the National Archives, in Washington, DC’s permanent Charters of Freedom exhibition, preserved in a glass display case embedded in a marble plinth under a vast wooden cupola. The site at Runnymede Meadows in Surrey was secured for posterity through the efforts of the American Bar Association, the Dulverton Trust and the Pilgrim Trust. The ABA paid for the construction of a memorial to the Charter, celebrating what it calls the document’s defence of ‘Freedom under the law’. In recognition of the ‘special relationship’ between Britain and the USA, the land of Runnymede Hill, also the site of a memorial to John F. Kennedy, was gifted to the United States.36 Thus, the making of Magna Carta could plausibly be described as a world event, and the document itself one of global importance.
But it remains a document originally thrashed out between an English king and his most powerful subjects. Following calls in January 2006 from the then Chancellor, Gordon Brown, for a British equivalent of Spanish, French, American and Australian national days, BBC History Magazine conducted a poll of its readers to choose a suitable date. The anniversary of ‘the signing of Magna Carta’, as the BBC erroneously reported it – as every schoolboy used to know, medieval charters were sealed, not signed – on 15 June 1215 (the date on which final negotiations between John and the barons began) emerged as the most popular choice, with over 27 per cent of the five thousand votes cast, beating VE Day and D-Day. As a number of commentators mentioned at the time, it was arguably a poor choice for a prospective ‘British day’. And as Andrew O’Hagan noted in the Daily Telegraph, if it was supposed to be a British day, why not commemorate the actual moment of political union (at least between England and Scotland), the passing of the Act of Union on 16 January 1707?37
The quest for totems of ‘British’ identity raises a further problem: how far can freedoms ‘gifted’ (imposed) by a colonial imperial power be regarded as freedoms at all? ‘Britain’, from its earliest inception as a meaningful political entity – ironically, by Scottish King James VI – in 1603, was defined in imperial terms. The values of Britishness, as Linda Colley has demonstrated, came to be very closely associated with empire.38 This raises potential difficulties for the project of constructing a ‘British freedom trail’, recently discussed in the Guardian as part of celebrating the ‘British’ values of ‘tolerance and fair play’ identified by Gordon Brown. Some of the radical moments listed in a
readers’ poll for that newspaper, such as the signing of the National Covenant in 1638 and the Merthyr Tydfil rising of 1831, were, in part, nationalist uprisings against English governance. Thus, much that could be defined as ‘radical’ activity in a British context essentially gains its force from its opposition to the existence of a British state, at least one run from Westminster.
Magna Carta presents historians tackling the development of our rights and freedoms (even those focusing only on the English context) with other problems, too. As O’Hagan has suggested, the vote for the Charter was, in part at least, a vote for some sort of ‘people power’ (mediated by ‘benevolent’ barons, of course). Yet the claims historically made on the strength of the Charter have varied a great deal. It has been invoked in support of the doctrine of ‘no taxation without representation’, in defence of the continued existence of parliaments themselves, in favour of universal suffrage and, in the case of some high-flown pieces of Chartist rhetoric, to legitimise the beginnings of a welfare state. What we see represented in the struggles of past people is clearly very much dependent on the context in which we write and think and argue.
What is left of our ‘Magna Carta freedoms’ presents a case in point. Between 1828 and 1969, thirty-three of the chapters of Henry III’s Charter were repealed as part of a process to simplify, reduce and clarify the law of England. Of the remaining clauses of Magna Carta, only one has any real value.* The main reputation of Magna Carta continues to be based on clause 29, which Burke believed to be ‘engraven on the hearts of Englishmen’. Sir Ivor Jennings spoke of its translation from Latin ‘into the language of the back streets’.39
A Radical History Of Britain Page 4