Liberty’s charter

The 1215 Magna Carta. Photo: Matt Cardy/Getty Images

Government under the law—responsible power—is a key element of liberty and a vital support of freedom. For those of us, of whatever background and of all backgrounds, who live in the Anglosphere, it is the foundation stone of a long process that contributed greatly to the distinctive strengths of the Anglo-American political systems. The idea, and crucially the practice, that those who make and execute the laws are also subject to them is vital to these strengths and to our history. It is also a legacy that contrasts markedly with the situation in many other states, not least as their governmental practice scarcely matches their constitutional precepts. Indeed, read the constitutions of states like North Korea or Zimbabwe if you want a bad joke.

President Obama downplayed the role of religious freedom, but his claim that Magna Carta was the “inspiration for America’s founding fathers” was sound. Unfortunately, all too many institutions of the American state appear to have forgotten the need to restrict their activity to what is clearly legal. Maybe more members of Congress should have considered the contents of the large exhibition the Library of Congress put on, “Magna Carta: Muse and Mentor.” Pictures of the sealing of Magna Carta can be found in many courthouses, and the story of Magna Carta is recorded in the decoration of the Supreme Court, as also with the new British Supreme Court.

So also with the BBC radio news declaring, on the morning of its 800th anniversary, that Magna Carta established that the Queen’s ancestors were “not above the law.” In practice, the British state and the European Union treat the law as an inconvenience that must be adapted to their needs.

What then was Magna Carta all about and how did it come to have this significance? What is its importance in the development of political liberty in the West? It is just as critical now to focus on these questions as when a century ago we were focused on the First World War and two centuries ago on Napoleon.

England as a developing state after the Norman Conquest was very much a state under the Crown. While France was little more than a confederacy of princely courts, with that of the king the first among equals (and this was even more true of Germany), England had not fragmented. Under Henry I (r. 1100–35), an expansion of royal judicial activity was matched by the growth of the Exchequer, which provided a regular and methodical collection of royal revenues and control of expenditure.

Written records became more common, which was important to the development and consistency of government, and to its need for a permanent geographical base. These processes owed much to the establishment of coherent groups of professional administrators. The law was part of the process. It was an alternative to the settlement of disputes through feuds and was also crucial to the attempt by the Crown to monopolize violence and force public justice on private disputes. Royal authority, which favored control and punishment, took precedence.

The law, however, was also a source of disquiet and tension. Alongside the stress on law and justice, the Crown could also be very arbitrary, and the greater coercive power of government made it a formidable instrument of tyranny. This was an issue under the bullying Henry II (r. 1154–89), and during his reign there was a tension between arbitrary authority and the emergence of the common law, with its emphasis on the jury.

The tensions between the sense of kingship (good and proper kingship on the model of the Old Testament and of distinguished predecessors) and royal wilfulness rose to a height under Henry’s son John (r. 1199–1216), who was tough, nasty, and, crucially, unsuccessful. He lacked the charisma and, not least, military prowess, of his elder brother, Richard I (r. 1189–99), the Lionheart. John’s epithet “Softsword” summed up his lack of a good reputation. His repeated failure abroad climaxed in his loss, in 1204, of the ancestral duchy of Normandy to conquest by King Philip Augustus of France. Repeated failures were major blows to John’s prestige and finances. They helped to encourage John’s domestic opponents to rise in rebellion.

As a result, John, in 1215, was forced to accept the terms of what was later to be called Magna Carta. This charter of liberties was a condemnation of John’s use of feudal, judicial, and other governmental powers, for it defined and limited royal rights. In one respect, Magna Carta was in effect an enormous list of everything that was wrong with government as John had applied it, notably arbitrary royal action that offended the ideas and practice of justice. In response, in the Charter, baronial liberties were protected and freemen were provided with some guarantees against arbitrary royal actions. The Crown was not to have the ability to determine its rights alone. Instead, Magna Carta asserted the importance of placing royal power under the law, and thus of government being legally accountable and thereby appropriate and, indeed, legal. Constitutionally, this pressure may have been influenced by recent developments in the structure of the government of the City of London.

What happened at Runnymede near Windsor on June 15, 1215 was a peace-making ceremony that established a new political dispensation and a new legal framework for the exercise of monarchy. The Charter was in effect England’s first written constitution, creating a new relationship between the king and the law by settling the point that the king was under the law. Clause 40 affirmed that no one could sell, deny, or delay justice. As a result, Magna Carta was to acquire totemic significance, being seen as the key constitutional document and settlement in English history and being cited by opponents of what was presented as arbitrary governmental power, notably in the thirteenth and seventeenth centuries in England and in the eighteenth in North America. The Charter became both a living idea and a symbol of liberty. It came to have the power to inspire those seeking justice—justice from overmighty government.

The principle of placing royal authority under the law was followed up under John’s son and successor, Henry III (r. 1216–72). His minority (1216–27) was significant in grounding the idea of consent to the actions of government. Magna Carta was embedded in the law during this minority: not, in fact, the 1215 original, but the version of 1217 (when it got its name), which was reissued in 1225. What originally had been an opposition document forced on John was shredded of its most offensive clauses, most of which were specific to John, and reissued.

Parliament was not mentioned in Magna Carta, indeed not until the 1230s, but Magna Carta was a stage in the development of Parliament, which turned out to be a pathway to constitutional government that was more effective than the issuing of charters by a monarch. Clauses 12 and 14 of the 1215 Magna Carta were particularly significant. Clause 12 established that no scutage (money in lieu of military service) or aid (tax) could be levied without common counsel, an idea which looked back to the Roman legal maxim that what touches all should be approved by all. Clause 14 established that this was to be obtained from the greater tenants-in-chief and from lesser tenants-in-chief who were to be summoned via sheriffs. In practice, these clauses meant no taxation without representation. They were left out in the reissues for largely technical reasons, but, fired by the example and symbolism of 1215, the idea of consent was now very much to become part of the political system.

Under Henry III, shire knights began to be elected to Parliament, and, from 1265, selected towns sent representatives. The new concept of representation was outlined in the writs summoning representatives of the clergy, counties, and boroughs to the 1295 Parliament. They were instructed to appear with the authority to give advice and consent on behalf of the communities they represented. In contrast, the nobles appeared on their own behalf. During the fourteenth century, the role of Parliament expanded, in large part due to the need to raise taxation for warfare with France and Scotland. Taxes were justified as being for the “common good,” which was part of a long pattern in English history: the poverty of the state in light of its extensive demands and the resulting need for the parliamentary approval of taxes and loans. The need for taxation was traded against the demand for redress of grievances and for the entrenching of individual liberty. Thus, the Statute of Purveyors of 1362 saw the regularizing by law of what had been a royal abuse, the compulsory purchase of supplies. Similarly, in 1679, the Habeas Corpus Act required the justification of detention pending trial. As a result, the constitution and the establishment of rights became a matter of the assertion of parliamentary sovereignty, rather than basic law as in many other states. Phrased differently, this sovereignty became the basic law. The Petition of Right of 1628 drew on Magna Carta, with the ideas and legacy of the challenge to King John applied to Charles I.

The emphasis on the sovereignty of Parliament, a body that could, and did, revise its decisions, ensured that the constitution was regarded as incremental and seamless, and not as based on a founding document, as in the case of the Constitution. Indeed, the barons drawing up demands on John used as their basis the coronation charter of Henry I (1100) which had promised to renounce the alleged abuses of his predecessor, William II (r. 1087–1100).

Insofar as there was such a founding document, it was Magna Carta, and the cultural predisposition for such a document helps explain why Americans in particular looked back to it, not least in order to confirm a pre-history. The first printed edition of the Charter appeared in 1508 and the first English translation in 1534. Thus, at the very time that the Bible was being presented in English as a foundation stone of independence from Papal control, so the Charter asserted a secular counterpart. In England, the common lawyers, such as Sir Edward Coke, the author of the Institutes of the Laws of England, who had played a major part in discovering a new political role for Magna Carta in the early seventeenth century, were heavily involved in drafting the charters of the English colonies established in North America. This legacy was of continuing significance in North America. Editions of Magna Carta were published in Boston and Providence. The rejection of George III in 1775–83 was seen as another instance of the opposition to John. American Patriots saw themselves as the proper heirs and defenders of the English tradition of liberty, just as the English presented themselves as the heirs of the legacy of imperial Rome.

Magna Carta had provided Coke and others with a key theme in the propagation of the idea of distinctive freedoms. A national history was readily discerned. Alfred, King of Wessex (r. 871–99), shared with the more shadowy, possibly early sixth-century warlord King Arthur the happy role for England of providing distinguished ancestry for notions of valiant liberty. Moreover, the merging of history and myth extended, when looking for examples of Anglo-Saxon rulers and Anglo-Saxon law-making, to the laws of Ethelbert, King of Kent, and the law code of Edward the Confessor.

With the idea of the “Norman Yoke,” however, it was believed that these had been pushed aside in England by the Norman Conquest of 1066, and had had to be recovered. Magna Carta, seen as the centerpiece of the “Ancient Constitution,” played a key role in the account of the recovery. It served in the early seventeenth century as the basis for constitutional opposition to claims and actions on behalf of the royal prerogative under James I (r. 1603–25) and Charles I (r. 1625–49). References continued. At the time of the French Revolution, the Charter was presented as part of a constitutional practice different to the bloody drive of the contemporary French, with Thomas Rowlandson in a caricature of 1792 depicting Britannia holding Magna Carta and confronting a French Medusa steeped in bloody deeds. Charles, 11th Duke of Norfolk (1746–1815), a firm Whig, sought to commemorate the 600th anniversary of Magna Carta by building an octagonal Great Hall at his seat of Arundel Castle, a hall dedicated to “Liberty asserted by the Barons in the reign of John.”

Interest and commitment continue. A poll conducted for the BBC History Magazine and reported in its June 2006 issue offered a choice of ten days for “On what historical day do you think Britain should celebrate British Day?” and elicited the highest response for Magna Carta Day, June 15. On March 12, 2014, Tim Berners-Lee called on BBC Radio Four for a “Magna Carta–like Charter of Rights” to guarantee rights on the web.

Not only lasting resonance but also lasting relevance. The notion of government as limited by law is a crucial counter to the legitimacy supposedly derived by representing the popular will. The latter has been pushed hard over the last quarter-millennium, and it is important to understand its potential, for good and ill. The latter is particularly relevant if law and legality are not central to theory and practice. The danger in all too many cultures is that popular mandates over social welfare are employed in order not only to overthrow liberties but also to redefine freedom. The guarantees offered to freedom and liberty by a proper understanding of the two great bases of Western civilization, law and history (both secular and religious), are under threat from the combination of statism and liberalism, a combination that makes for illiberalism. An understanding of the foundation of Western liberty is important in confronting this challenge.

It was entirely typical of the Clintonesque contempt for, and trivialization of, the Constitution and law that President Clinton sought to delay the sexual harassment suit brought by Paula Jones, only for a federal district judge to determine that delaying the suit while Clinton was president was a clear breach of Magna Carta which had guaranteed that right and justice not be denied or delayed. Indeed, the case established that sitting presidents are not immune from civil law litigation. This is in line with the way in which the Bill of Rights as well as the Fifth Amendment to the American Constitution drew heavily on Magna Carta as did the precept of “no taxation without representation.” It should be no surprise that the very site of Runnymede was preserved from developing by the generosity of an American in 1929, or that the site contains memorials by or dedicated to American people and institutions: the American Bar Association Memorial and the John F. Kennedy Memorial, installed in 1957 and 1965, respectively.

Magna Carta has great symbolic weight both in providing a vital instance of successful demands for the limitation of governmental power and also in serving as a reminder that power itself is necessarily valid only if legal, as in principled and independent of government. A key reference point for a historically grounded call for authority under the law and for a practice of law that reflects freedom from government oppression, Magna Cart is a fundamental charter. It is of central importance for British and American liberties.