CHAPTER 16
The men in 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.
Magna Carta, Clause 63
When the rebels offered the throne of England to Prince Louis, they were reverting to the old style of rebellion. Once again barons were taking up arms on behalf of a rival king, as barons had in the past. By offering the crown to Louis they were publicly acknowledging that the new style had failed. Magna Carta had been intended as a peace treaty, a formula to bring to an end the conflict between king and barons. In fact civil war had quickly broken out again. Denounced by the pope, rejected by the king, discarded by the rebels, by the end of 1215 Magna Carta was surely dead.
Yet it survived. In 1770 William Pitt the Elder called it ‘the Bible of the English Constitution’. It remained on the Statute Book until the Law Reform Act of 1863. In 1956 the English judge, Lord Denning, described it as ‘the greatest constitutional document of all times – the foundation of the freedom of the individual against the arbitrary authority of the despot’. A Welsh historian, Natalie Fryde, explaining the importance of Magna Carta to German students, has recently described it as ‘one of the holiest cows in English history’. But it was not just in England that it came to enjoy the status of a fundamental law. Taken to the American colonies, it influenced both the Constitution of the United States and the laws of individual states.
How was it that a failed peace treaty survived to become ‘the corner-stone of liberty in the English-speaking world’? A failure when used by rebels as a weapon against the Crown, it succeeded when it was taken over by royalists and turned against the rebels. But the decision to reissue Magna Carta so soon after King John’s death was more than just clever civil war propaganda. Minor changes in the text of some of its clauses demonstrate that the detail of the document was being studied carefully and thoughtfully. For example, the charter of 1215 conceded that an heir who had been in the wardship of the Crown should not have to pay a relief when he came of age and entered into his inheritance. The charter of 1216 made the same concession and went on to fix the age at which an heir entered his majority, ‘namely when he is twenty-one years old’. Magna Carta was evidently thought of as a serious and valuable statement of the law of the land, worth modifying, worth keeping up to date, not just a political manifesto to be jettisoned as soon as the emergency was over.
After Louis had given up his fight for the English throne and had gone back to France, in the autumn of 1217, Magna Carta was reissued again, and with further modifications. These included the issue of a supplementary charter dealing with forest law. Since the Forest Charter was a much shorter document, the main charter became known as the ‘big charter’ – Magna Carta. In 1225 the charter was reissued yet again, this time in return for a grant of taxation to the king. The text of the 1225 version is particularly important because it is this version, and not the Runnymede charter, that entered the statute books and so became the Magna Carta of subsequent history and myth. Like the charter of 1215, these reissues were translated into French and English and read out at meetings of the shire courts throughout the realm. All this meant that Magna Carta was a highly publicised concept.
In 1265 when the government of England was in the hands of Simon de Montfort it was decreed that the charter should be proclaimed twice a year so that in future no one could claim to be ignorant of it. One demand commonly made was for copies of Magna Carta to be nailed to church doors. It rapidly became widely known as a ‘Good Thing’, a touchstone of good government. From now on whenever a king was thought to be governing badly, to be infringing men’s liberties, the cry went up for confirmation of the charter. Edward I was forced to confirm the charter in 1297. When lawyers compiled their books of statutes it was always Magna Carta, the text of 1225 as confirmed in 1297, that had pride of place. It came to be thought of as the first statute of the realm.
Believing Magna Carta to be a ‘Good Thing’, men assumed that it contained what they wanted it to contain. In this way it took on a mythical life of its own. King John’s promise in Clause 39 not to take any action against the free man, ‘except by the lawful judgement of his peers’ came to be interpreted as a guarantee of trial by jury. In fact, in June 1215 ‘the lawful judgement of peers’ meant that people should be tried in courts composed of their social equals. It was only after Innocent III, coincidentally later in the same year, banned priests from participating in trials by ordeal that the verdict-giving jury gradually came to be employed in criminal trials. But the myth that the right to trial by jury goes back to Magna Carta is one that remains widely believed in today. It was this myth that led Tony Hancock, playing Henry Fonda’s role in Twelve Angry Men, to turn to his fellow jurors with the plea: ‘Does Magna Carta mean nothing to you? Did she die in vain?’
A myth that was once widely believed by lawyers is that Magna Carta embodied the ancient laws of Anglo-Saxon England, subverted by the ‘Norman Yoke’ after 1066, but then recovered and set out for all time in the charter. This myth mattered greatly in the run-up to the English civil war of the seventeenth century. In opposition to the Stuart monarchy, which was making increasing use of its prerogative powers, the lawyers and gentry in the House of Commons emphasised the notion of the subordination of the Crown to the common law of England. For many lawyers of the time, in particular Sir Edward Coke, Magna Carta was ‘the fountain of all the fundamental laws of the realm . . . a confirmation or restitution of the common law’. From 1610 onwards Coke cited the charter again and again, in and out of the House of Commons, always claiming that it limited the king’s power to alter ancient customs. When Charles I was informed that Coke was working on a book on Magna Carta, he ordered its suppression. But after Coke’s death, the Long Parliament ordered the publication of his confiscated papers and in consequence his commentary on Magna Carta was published as part of the revolution of 1642.
The radical Levellers appealed to Magna Carta to justify their resistance not only to Charles I but also to the Long Parliament which they felt had betrayed the cause, and then, in turn, to Oliver Cromwell. Once in power, even Cromwell was inclined to override the provisions of Magna Carta. On one occasion when the judges complained, he reminded them who had appointed them and told them that ‘their Magna F–– should not control his actions’. (Lord Chief Justice Keeling may have been remembering Cromwell’s words when, in 1667, he referred dismissively to ‘Magna Farta’.)
Against these seventeenth-century tyrants the Leveller John Lilburne proudly proclaimed his rights as a free-born Englishman:
‘I am a freeman, yea a free-born denizen of England . . . and I conceive I have as true a right to all the privileges that do belong to a freeman as the greatest man in England, whosoever he be . . . and the ground of my freedom, I build upon the Grand Charter of England.’
In a pamphlet composed after he had been arrested in 1648, Lilburne wrote that the arresting officer ‘stabbed Magna Carta . . . to the very heart and soul’. Other Levellers succeeded in turning the political debate into a piece of street theatre. The pamphleteer Richard Overton described how, after his arrest, he was dragged to Newgate gaol by his head and shoulders ‘as if I had been a dead dog’, yet all the while managing to hold on to his copy of Coke on Magna Carta.
I clapped it in my arms, and I laid myself upon my belly, but by force they violently turned me upon my back, then smote me . . . to make me let go my hold, whereupon as loud as I could, I cried out, murder, murder, murder. And thus by an assault they got the great Charter of England’s Liberties and Freedoms from me; which I laboured to the utmost of power in me to preserve and defend, and ever to the death shall maintain.
All this seventeenth-century fuss meant that Magna Carta was headline news at the time that the American colonies were being settled. ‘Nor shall any persons be deprived of life, liberty or property, without due process of law’: the resounding phrases of the Fifth Amendment are an echo of Magna Carta Clause 39. In America as in England Magna Carta became a potent symbol of men’s struggle for freedom and human rights. Thus a tablet commemorating Magna Carta was set up at Runnymede by the American Bar Association, and an adjacent site was chosen as a memorial to John F. Kennedy. Fortunately these memorials were not placed on what has become known as Magna Carta Island since the notion that Magna Carta was sealed on an island at Runnymede is just another myth, in this case spun out of the name Runnymede, which means ‘the meadow in council island’.
‘To no one will we sell, to no one will we deny or delay right or justice.’ Most people will think governments everywhere should still be reminded of the principle stated in Clause 40. The law’s delays are with us still, and it is all too clear that the wealthy have so great an advantage when brought before courts of law that to talk of ‘selling justice’ does not seem much – if at all – wide of the mark. Similarly the much misunderstood Clause 39 encapsulates a fundamental principle: ‘No free man shall be arrested or imprisoned or have their property confiscated or be outlawed or exiled or in any way ruined, nor will we take any action agaisnt him, except by the lawful judgement of his peers or by the law of the land.’ Despite a few archaic terms such as ‘outlawry’ or ‘peers’, despite the fact that it says ‘man’, not ‘person’, this remains a sweeping general statement of the individual’s rights in the face of government power.
It is striking that the sweeping statements of lofty general principle in Clauses 39 and 40 come so late in the charter; this hardly suggests that they were uppermost in the minds of those who negotiated the charter in 1215. The first ten clauses of Magna Carta are principally concerned with the property rights of earls and barons, and so, too, are many of the later clauses. At the beginning of the twentieth century it became fashionable to take a debunking view of Magna Carta, to see it as being all about the selfish interests of ‘feudal barons’. But none of this has touched the symbolic value of Magna Carta. It was the product of a society accustomed to dealing with the problems and privileges of freedom: freedom from slavery or from serfdom, the freedom of boroughs, the freedom of the Church, the freedom of trade. The charter still retains its iconic status. Anyone with a cause against the government of the day is very likely to defend his or her right to protest by referring to Magna Carta.
There is much to be said for the protesters’ view of Magna Carta. Although there is not a word in it about the right to protest, there is a sense in which Magna Carta in its entirety represents protest. It was in origin the product of direct political action, of negotiation after rebellion. As a symbol of the struggle against tyranny it will always retain its value.