English history is more often recited as a procession of kings and queens than of documents or ideas. As is well known, Britain has no written constitution. Yet just as historians of America or France have fetishized pieces of paper or parchment – declarations of the Rights of Men or of republican Independence – for the history of England there are at least three or four documentary relics that all students might be expected to name. The 1086 Domesday Book would be one, the Great Reform Act of 1832 another. A third might be the 1689 Bill of Rights. At their head, looming over all others, would stand the object that forms the subject of this present enquiry: Magna Carta, literally ‘the Great Charter’, first issued by King John of England in 1215.
In its earliest incarnation, as an undertaking by the king to observe certain liberties granted to God, the Church, and the free men of England, Magna Carta takes the form of a single sheet of parchment – dried and smoothed sheepskin – on which, in ink manufactured from water, dust, and powdered oak-apple, are written some 4,000 words of medieval Latin. The outcome is an object by no means beautiful to behold. Today, only four examples of the original 1215 Magna Carta charter survive. Flattened out, each occupies roughly the same surface area as a standard modern television screen. At the bottom hung – and in the case of one of the surviving examples still hangs – an impression of the king’s seal, in green or brown beeswax. The unique surviving example of a sealed 1215 Magna Carta, now in the British Library in London, was so badly damaged by fire in the 1730s that its seal has been reduced to a shapeless lump, today looking like nothing so much as a piece of chewed-up toffee. It is on the basis of these unlovely objects that a vast edifice of political and constitutional rhetoric has been built.
The merest glance at the newspapers or at modern political debate would reveal the semi-mythical status that Magna Carta still commands in England and the English-speaking world. ‘The foundation of the freedom of the individual against the arbitrary authority of the despot’ (Lord Denning); ‘The great cornerstone in England’s temple of liberty’ (Jerome K. Jerome, whose Three Men in a Boat, it may be remembered, were notoriously unable to pitch a tent on the site of Runnymede): these and many more such plaudits have been loaded onto a document more often appealed to than actually read. A fortnight after D-Day, in June 1944, King George VI was travelling back to Windsor Castle, inveighing against the latest infringement of royal prerogative by the wartime government of Winston Churchill. ‘Suddenly’, his secretary reports, ‘he threw his arm out of the window and exclaimed “And that’s where it all started!”’. The royal car was just passing Runnymede.
Magna Carta is generally (though, as we shall see, wrongly) supposed to be the first attempt to codify English law. As such, it is still cited in English and American law courts. Even within the past decade, attempts have been made to employ one or other of its clauses to argue points of principle, from fundamental matters of public interest such as the detention of those suspected of terrorism, or the right to silence for the accused in criminal trials, down to private grievances over fishing rights on the rivers Severn or Shannon. As recently as January 2012, a group of New Hampshire Republicans presented a bill intended to ensure that any new state legislation affecting individual rights or liberties incorporate a quotation from Magna Carta.
1. Windsor Castle viewed from Runnymede
In fact, surprisingly little of the original Magna Carta remains on today’s statute book. As issued in 1215, Magna Carta was first and foremost a peace treaty between king and barons, not an enunciation of abstract ‘laws’. Although it survived the immediate circumstances of its issue, nearly one-third of its words were either dropped or substantially rewritten within the first ten years of its existence. As a result, the charter as received by later lawyers and historians is a hybrid brought about through a series of reissues early in the reign of King John’s son, Henry III. By the 1980s, as a result of law reform, all but four of Magna Carta’s original sixty clauses had been declared obsolete, erased from the statute book. What remain are the clauses granting freedom to the Church (clause 1), guaranteeing the customs and liberties of the city of London (clause 13), and a more general prohibition (clauses 39–40) disclaiming the king’s power to order arbitrary arrest, forbidding the sale of justice, and guaranteeing judgment by a person’s equals (or ‘peers’) – in other words, what we might think of today as the right to trial by jury.
Despite the long after-life of these clauses, the charter as a whole was already treated as an archaic relic as long ago as 1300, when it was for the last time granted a full reissue by a king of England, King John’s grandson Edward I. By then, it had already become more a totemic monument to past struggles than something tailored to current political circumstance. Yet as the reissues of the 13th century demonstrate, Magna Carta remained of immense importance to the political community. By 1218, it had already acquired its sobriquet as the ‘great’ (‘Magna’) charter. By the 1230s, its defence had become the principal rallying point for the king’s subjects against the arbitrary authority of the crown. In the 1620s, it was revived as a political manifesto, cited by Parliamentarians as a check upon the Stuart kings and their claims to ‘absolute’ power. In the 18th century, it was proudly exhibited as one of the greater treasures of the newly established British Museum (subsequently the British Library). In 2007, when for the very first time an ‘original’ Magna Carta, albeit one from the late reissue of 1297, came up for public auction, not only did it attract worldwide media attention and a remarkable price ($21.3 million, the highest ever paid for a single sheet of parchment), but the crowds that queued to see it, in New York where it was put on sale, and elsewhere, in Oxford or Lincoln or Salisbury or London or Canberra, wherever other ‘original’ Magna Cartas are publicly displayed, bore witness to a continuing fascination with this most remarkable of documentary relics. Even today, to enter the hushed gallery where the British Library’s original Magna Cartas are exhibited is to experience a sense of semi-religious awe.
It is to explain the true meaning of this document, to elucidate the circumstances in which it was issued, and to trace something of the subsequent memorialization of Magna Carta, that this book has been written. Most of what follows is a restatement of truths established by other historians, as a result of nearly six centuries of scholarly investigation. From time to time, however, it is possible to improve upon our understanding, to bring new connections to light, and even in one instance (the so-called ‘committee’ of 25 barons) to reveal a truth that has lain hidden since the 13th century. Any appreciation of Magna Carta must begin with an understanding of the circumstances of the reign of King John, and to understand the reign of King John we in turn need to appreciate the historical context. To do this, we shall find ourselves tunnelling backwards from 1215 towards the origins of English law in Anglo-Saxon, Roman, and ultimately in even more ancient traditions.