3. Magna Carta: from King John to western liberty*
On 15 June 2015, the 800th anniversary of the sealing of Magna Carta, leaders of the British establishment gathered in the field of Runnymede, on the banks of the river Thames, twenty or so miles west of London. The queen and the duke of Edinburgh were there. So was the duke of Cambridge (future heir to the British throne), the archbishop of Canterbury (Justin Welby), the prime minister (David Cameron) and a large number of government, military and civic dignitaries. The attorney general of the United States of America (Loretta Lynch) attended as a representative of President Obama. Together she and the Princess Royal, Princess Anne, re-inaugurated the American Bar Association memorial on the field of Runnymede: a classical rotunda, built in 1957, decorated with American stars and housing a pedestal that declares its dedication to ‘Magna Carta, symbol of freedom under law’.
A neutral observer might be forgiven for considering this a most peculiar occasion. Why, for example, were so many members of the British royal family involved in the commemoration of a document that so severely limited the exercise of royal power? Why were there as many American as there were British spectators? What did it say about the conservatism of the British ‘establishment’ that the archbishop of Canterbury travelled to Runnymede from his London residence at Lambeth, just as his predecessor, Stephen Langton, had done in June 1215, and that the queen arrived from her castle at Windsor, just as King John had done in 1215, albeit transported by helicopter rather than on horseback? As for the celebrations themselves, they were described to me as ‘a magnificent blend of fascist flag rally and boy scout jamboree’. Certainly, they seemed to have little to do with the real history of the document, King John’s Magna Carta, whose anniversary was celebrated.
Magna Carta has passed through many centennials. Yet it is surely significant for our understanding of British history that the anniversary of 2015 should have been the first to have been so elaborately stage-managed. On the 500th anniversary, in 1715, the British paid little attention to Magna Carta, being too involved in Jacobite Rebellion. In 1815, Napoleon stole the show, obliging the British army to return to Flanders, on the eve of its great test at Waterloo (18 June). In 1915, the British army was once again in Flanders and celebrations of Magna Carta, in preparation since 1913, were cancelled in the face of German aerial bombardment of London, the second battle of Ypres, the sinking of the Lusitania and the Allied landings at Gallipoli. As this should demonstrate, and for all its 800-year history, whatever else it may have done, Magna Carta has brought the British no relief from foreign wars, nor from political turmoil that as recently as 1715, and again after 1815 and 1915 (not least in Ireland), threatened to develop into revolutionary chaos.
Referring to Magna Carta on 4 July 1918, with the end of the First World War in sight, Winston Churchill declared that the American Declaration of Independence ‘follows on the Magna Charta and the Bill of Rights (1689) as the third great title-deed on which the liberties of the English-speaking people are founded’.1 His words were intended to celebrate the wartime alliance between Britain and America, cemented by a new ‘English-Speaking Union’. Yet were they anything more than empty rhetoric? Certainly, they have since been repeated by countless politicians around the world. Why such praise for a document that even today, in its 800th anniversary year, very few people have read and even fewer can claim properly to understand?
Magna Carta is celebrated today as one of the foundation stones of constitutionalism throughout the English-speaking world: an 800-year-old guarantee of the rule of law. In origin, however, it had no such universal meaning. At is most basic, it is an 800-year-old peace treaty made between the king and his leading subjects, the ‘barons’ of England. Four copies issued officially from the chancery of King John still survive. Two of these ‘originals’ of the 1215 Magna Carta are preserved in the British Library in London, the two others in the cathedral archives of Salisbury and Lincoln.2 The treaty records an attempt by barons and king, in the summer of 1215, to put an end to a civil war itself the product of the king’s incompetence and tyranny. King John (1199–1215) came to the throne as the youngest son of the great Henry II (1154–89). Founder of the Angevin ‘empire’ in France, Henry II had been a ruler on a truly imperial scale. Ruling more French territory than any king since the collapse of the Carolingian dynasty, 300 years before, he had not only extended his dominion by conquests in Ireland and Brittany, but ensured its commemoration in literary and architectural memorials worthy to stand alongside those of the court of Charlemagne as a self-consciously magnificent celebration of the rise of empire. John’s greatest failing was his inability to live up to the reputation either of his empire-building father, Henry II, or of his heroic elder brother, the crusader king, Richard ‘Lionheart’ (1189–99).3
Kings in the middle ages were expected to discharge two chief functions: they were to maintain and if possible extend the frontiers of their dominion, and guard their subjects against foreign attack. In the process, they were also to ensure that justice was done and that the rights and property of their inferiors were protected. It is precisely these functions that were proclaimed on the great seals of King John and his ancestors: the means by which the king himself authenticated his own letters and laws. On one side, the great seal showed the king on horseback riding into battle. On the other, it portrayed him enthroned in majesty, with the orb of dominion and the sword of justice, ruling his people as God’s chosen instrument on earth.4 In both of these functions, military and judicial, John proved a miserable failure. In 1202, he faced rebellion from his young nephew, the fifteen-year-old Arthur of Brittany. Such rebellion was nothing new. Indeed it had become a more or less regular feature of the family politics of John and his ancestors, the Plantagenet kings. Through a lightning raid and with considerable aplomb, John took Arthur prisoner. So far so good. This was the fate of many previous royal rebels, locked away, blinded or castrated as a means of invalidating their claims to power. But in Arthur’s case, things went seriously wrong.
In circumstances that still remain mysterious, Arthur simply disappeared. He was last heard of at Falaise, or possibly Rouen, within a few days of his capture. Some alleged that he thereafter died attempting escape. Others that he was murdered by the king in a fit of drunken rage. Most likely, he was killed or starved to death at the king’s command. To imprison a kinsman was one thing; to kill him quite another. The act branded King John for ever afterwards as a tyrant, slayer of his own flesh and blood, the killer moreover of a boy barely out of puberty, fit candidate to be celebrated as an innocent martyr. The barons of northern France, tired of endless wars between the kings of England and their rivals in Paris, threw in their lot with King Philip of France. Philip invaded Normandy. John fled to England. Within the space of only two years, the entire Plantagenet empire north of the river Loire was lost to Philip and the French.5
John was determined to reconquer these lost lands. To that end, he raised a vast war chest through taxation and the exploitation of his feudal rights. Previously to a large extent an absentee from England, he now resided for the most part in London and the southern counties, a constant threat to his English barons, eyeing up not only their financial resources but their wives and daughters. The king was a notorious lecher. He was also notoriously cruel. After 1210, he is said to have starved to death the wife and eldest son of one of his leading barons, William de Briouze: a man who had previously stood among John’s closest friends, but whom he abandoned, disgraced and hounded into exile. As with Arthur, the persecution of the Briouzes supplied the king’s enemies with what must have seemed a God-given opportunity to blacken John’s name.6 Nor was it only the barons from whom a backlash came.
The king sprang from a family whose relations with the Church had never been smooth. In 1170, John’s father, Henry II, had notoriously spoken out against the then archbishop of Canterbury, Thomas Becket, provoking Becket’s murder in Canterbury Cathedral. Ever afterwards, however blameless they might claim to be for the martyrdom of ‘St. Thomas’, the Plantagenet dynasty was branded in the eyes of the pope and the Church as a dynasty of murderers, the sons of Belial, the Devil’s Brood (from the verdict upon Henry II pronounced by St. Bernard, c.1152, ‘From the Devil he came, and to the Devil he will surely return’).7 As a result, after 1205, when King John attempted to have one of his henchmen promoted as archbishop of Canterbury, the pope refused. Instead, John was commanded to accept as archbishop a man, Stephen Langton, who although born in England had spent the past thirty years in Paris. There Langton had lectured on the Bible, drawing comparisons between the good and bad kings of the present day, the Plantagenets included, and the tyrants and heroes whose exploits were described in the Christian Old Testament.8
John refused to accept Langton. The pope refused to abandon him. The outcome, from 1208 to 1213, was a stand-off between Church and state. Throughout this period of ‘Interdict’, the mass and other sacraments were not publicly celebrated; the dead were not buried in consecrated ground; the king’s court was excommunicated, and the king himself was threatened not just with excommunication but the possibility that the pope might now back an invasion of England by the French king Philip Augustus, deposing John and placing his greatest rival upon the English throne. To avoid such an eventuality, in 1213, John backed down. The pope was promised titular lordship over both England and Ireland together with an annual ‘census’ or rent (a token sum of £666, 1,000 ‘marks’). In return, the pope now treated John as a favoured son.9
Using the vast treasure that he had by now extracted, both from his barons and from the confiscated property of the Church, John embarked on a campaign of reconquest in France. This ended in catastrophe at the battle of Bouvines, fought outside Lille, on 27 July 1214. Here John’s northern allies, including the Holy Roman Emperor, Otto IV, were decisively defeated by Philip of France. John himself, who was south of the Loire at the time, was obliged to slink back to England for the second time in his reign, defeated in war and with his treasury exhausted.
The outcome was rebellion and civil war. In the hope of cementing the friendship of the pope, John himself took vows as a crusader. This in theory placed him under the direct protection of the Church. In the meantime, a large number of English barons, particularly those of East Anglia and the North, rose up against the king.10 They enjoyed the tacit support of Langton and other English bishops, many of whom had financial or personal grievances of their own against John, arising from the problems of the Interdict since 1208. From among this opposition party – a truly political coalition between barons and clerics, one of the first such in English history – voices began to be raised demanding that John reissue the promises made by earlier kings to rule well and in accordance with custom and law. In particular, attention was drawn, perhaps by Langton, perhaps by others, to the so-called ‘Coronation Charter’ that John’s great-grandfather, King Henry I, had issued in 1100. Here, at a desperate moment in his own career, Henry I had been persuaded to limit the extent of royal exploitation of feudal rights over widows, orphans and the Church.11 Let King John, the barons now demanded, reissue this charter, suitably updated so as to answer the circumstances of 1215.
In May 1215, the city of London, itself tired of the king’s financial exploitation and disgruntled with French wars that placed an embargo on foreign trade, threw in its lot with the rebels. The king was now forced to negotiate. At Runnymede, on and around 15 June 1215, at a location halfway between the royal castle at Windsor and the rebel stronghold in London, John met with the rebel barons and agreed a settlement, based in part upon Henry I’s coronation charter, in part upon more recent developments. Runnymede was chosen as a liminal spot, on the banks of the Thames, neither entirely land nor water, at a place where the boundaries of four English counties met, and perhaps more significantly the boundaries of four English dioceses (the bishoprics of Lincoln, London, Winchester and Salisbury).12
The document thrashed out at Runnymede, known to us as Magna Carta, was first and foremost a peace treaty. Its intention was to place limitations upon the king’s power both to tax and to trouble his subjects, in order that peace might be re-established between king and realm. Thus, among its sixty or more provisions, it included clauses on the liberties of the Church, of the city of London, and above all protecting the customary rights of the barons, their heirs and dependents. It included much else besides.13 For example, it sought to promote peace between England, Scotland and Wales (clauses 56–9). It decreed standard measures for wine, corn and cloth (clause 35, significantly calculated according to the measures already adopted by the city of London). It sought to prevent any resurgence in royal authority, first by calling for the expulsion of a list of the king’s named foreign constables (clauses 50–1), and thereafter by imposing a supervisory committee of twenty-five barons above and over the king (clause 61, the socalled ‘security clause’). These men were in effect empowered to make war against John should the king in any way infringe the terms of the Charter.
The choice of the number twenty-five here suggests the influence of the archbishop of Canterbury, Stephen Langton, since it was in theology and biblical exegesis that the number twenty-five was widely advertized as a number appropriate to the law (being five times five, or the square of the number of books of law in the Old Testament, the so-called Pentateuch).14 Other clauses of the Charter, far from being pure ‘English’ law, were so close to expedients attempted elsewhere in France or northern Spain as to suggest a degree of conscious imitation of continental precedents. In particular, several clauses of Magna Carta, on the liberties of the Church, on free access to justice, on inheritance, the rights of widows and orphans and so forth, were anticipated in the so-called ‘Statute of Pamiers’ issued in 1212 by the French baron, Simon de Montfort, for his subjects in those parts of Toulouse and southern France recently conquered in the Albigensian Crusade. Magna Carta did not simply copy Pamiers. Both settlements nonetheless reflected tensions between rulers and the ruled, shared across wide areas of Europe in the decades either side of 1215.15
Rather surprisingly for a settlement that is supposed to have been ‘radical’ and to have introduced nothing but good, the 1215 Magna Carta also contains clauses that today seem deeply reactionary or contrary to modern ideas of justice and right. Thus it is firm in its condemnation of the usury charged by Jews against the debts of underage heirs (clauses 10–11); in its limitation of the access to justice allowed to women (clause 54); and in its demand for the expulsion of foreigners (clauses 50–1, here described as ‘aliens’, borrowing a word used in the Old Testament book of Maccabees to describe outsiders in occupation of the Holy Land). In only a few places does the Charter enunciate what might be described as general or legal principles. In clause 60, for instance, it demands that the customs and liberties hereby guaranteed by the king to his barons be extended by the barons to all lesser men: an essential widening of the settlement, that transformed it from being a narrowly ‘feudal’ document, of benefit to the few, into a much more generous concession, available to the many.
Most famously, clauses 39 and 40 of the Charter enunciate a general principle that in England we would describe as the rule of law, or in America as the right to ‘due process’:
No free man is to be arrested, or imprisoned, or disseised, or outlawed, or exiled, or in any other way ruined, nor will we go against him or send against him, except by the lawful judgment of his peers or by the law of the land.
We will not sell, or deny, or delay right or justice to anyone
Together with clauses 1 and 13 on the freedom of the Church and the liberties of the city of London, these two clauses are the only fragments of Magna Carta that still remain law in England today. They have been widely imitated, so that echoes of them are to be found in the American Bill of Rights, in the French Declaration of the Rights of Man (1789) and in the 1948 United Nations Universal Declaration of Human Rights. Yet we should notice, from the start, how vague they become whenever we attempt to pin them down to specific points of law. Who, for example, is a free man? Did this category include both women and men (answer: for the most part yes), and did it exclude the vast majority of the population who, in 1215, would have been considered servile peasants living without the right of appeal to the king’s courts (answer: probably no)? We are to be judged by our ‘peers’, that is to say by our equals (the term pares in Latin here being borrowed from the French word pair, as in the modern ‘pair of aces’ in a game of cards). But who are our equals? Are the rich to be judged by the poor, or those of aristocratic birth by mere commoners? Moreover, what is the ‘law of the land’ by which ‘lawful judgement’ is to be obtained? In 1215, indeed until as late as the 19th century, there was no single book to which one could refer in England in which the ‘law of the land’ was clearly and concisely set out. Rather, law was a matter not just of statute but of custom, process and to some extent of expediency. Moreover, who was to determine whether any particular judgement was or was not ‘lawful’?
Here, bizarrely, we return to the sovereign power of the king as the only authority capable of determining what was or was not to be considered ‘lawful judgement’. Magna Carta as a whole, framed as an act of grace, granted by the king to his barons, bishops and other subjects, enshrines the principle that it is the king who delivers justice, grants privileges, and ultimately has the power both to extend and to limit the authority of the law. Far from placing the king under the law, Magna Carta can in this reading appear a document that promotes the king as lawgiver. No wonder, perhaps, that so many members of the British royal family queued up in 2015 to celebrate the Charter’s anniversary.
Furthermore, as granted in 1215, it was clear from the very start that the charter agreed at Runnymede would provoke outrage and repudiation. The king was a feudal subject of the pope. Yet the Charter deliberately ignored the pope’s rights as overlord, specifically forbidding the king from seeking adjudication from any higher authority. The king in theory derived his powers from God, yet the Charter attempted to insert a committee of twenty-five barons as judges over the king. No such settlement could be accepted either by pope or by king. In medieval conceptualization, the king was head of the body politic. How could any authority, papal or royal, permit the head to be ruled by the body’s inferior members? It is worth noticing that, even when they invited the king of France to invade England and support them against King John, the barons made no attempt to persuade King Philip, or Louis, his son, that Magna Carta was something worth reissuing or defending. This was a document as repugnant to the kings of France as it was to the pope or King John. Within twelve weeks of its issue, the peace that it sought to establish had irrevocably collapsed. The barons refused to surrender the city of London. The king refused to expel his alien sheriffs and constables. In August, the pope declared the Charter annulled.16 In September, king and barons once again went to war against each other. After barely twelve weeks, Magna Carta expired: a failed treaty that brought war rather than peace.
For the next year, the king made war on his barons with barely a thought for what had been negotiated at Runnymede. To lead their cause, the barons encouraged Louis, eldest son of King Philip of France, to lead a French invasion of England. But in October 1216, King John died, struck down, we are told, by an attack of dysentery contracted from eating peaches and new cider. The throne now passed to his son, a nine-year-old boy, the future King Henry III. With Louis ruling in London, and threatening now to seek coronation in Westminster Abbey, the traditional site of such ceremonies, Henry III’s ministers not only had their boy king crowned at Gloucester, far away in the west, but a few days later, at Bristol, reissued Magna Carta. The charter was now offered as a manifesto of future good government, to persuade the realm that Henry would in future rule better than his father had done. In the process, about a third of its length and many of its more radical clauses were pruned away. Out went the clauses on consent for taxation. Out went those on aliens or the Jews. Above all, out went the so-called ‘security clause’ by which the king at Runnymede had bound himself to observe the advice and authority of a committee of twenty-five barons.
What remained, including the guarantees of due process and of the liberties of the Church, of London, of the barons and the freemen of England, was first reissued by Henry III in November 1216, sealed not only by the king’s chief guardian, William Marshal earl of Pembroke, but by the pope’s local representative, the legate Guala Bicchieri, a native of Vercelli in northern Italy. By this means, the Charter was henceforth endorsed not just by the king’s ministers but, in effect, by the papacy, God’s highest representative on earth. Again sealed by the legate, the Charter was reissued once the civil war had been won by the king’s party in November 1217. It was issued again in 1225, when Henry III came of age, now in a definitive form whose text was to change only in minor details thereafter. It was the 1225 version of the Charter that henceforth was treated as law. The peace treaty of 1215 was thus transformed into a statute. Reissued again in 1234, in 1253, in 1265, after 1272, in 1297 and for a last time in 1300, the Charter of 1225 achieved totemic status.17 By 1300, indeed as early as the 1250s, many of the terms of the Charter were anachronistic, divorced from the day-to-day concerns of political society. What mattered were not the individual clauses on inheritance, widows, wards or financial obligations, but the fact that the charter had come to be regarded as something approaching holy writ, widely believed to protect the king’s subjects, their liberties and their sense of communal right against the threat of royal tyranny.18 Although grounded in the absolute sovereignty of the crown, the Charter was perceived as in some senses a concession to popular right. Granted by ‘We the king’, rather than ‘We the people’, it nonetheless recognized a degree of mutual dependence in dealings between ruler and ruled.
It had also increasingly come to be associated with an institution that had emerged since the 1230s from a more ancient tradition of councils and representative assemblies summoned by English kings. Now described as ‘parliaments’ (‘speaking togethers’), the more solemn meetings of the king’s councillors were by the 1250s capable not only of convening in the king’s absence but of incorporating representatives of the localities, sent to such ‘parliaments’ both to air local grievances and to discuss the granting of tax. Following a renewal of hostilities between king and barons between 1258 and 1265, parliament was both institutionalized and transformed into a theatre of kingship. In the hands of Henry III’s son, Edward I, king of England from 1272–1307, it was summoned to display royal magnanimity and justice.19 Nonetheless, by this time the idea had been firmly planted that kingship was itself conditional upon royal respect and service to the community of the realm. In particular, the financial problems of the English crown, and the inability of kings to finance their own wars in France without taxation from their people, guaranteed parliament, at times of crisis, a political role quite unlike that enjoyed by the more supine representative assemblies of kingdoms such as France or the Holy Roman Empire.20 Elsewhere in Europe, kings never fully acknowledged the right of such assemblies to veto taxation or supply. In England, they had little choice but to accept such limits.21 This too might be seen as a consequence of Magna Carta which, by limiting the traditional extortions of royal government, rendered future reliance on parliamentary taxation more or less inevitable.
Once again, it is important to remember that England in the later middle ages was not in any material sense better ruled than other nations. Good and bad kings came and went. In contrast to other nations, the English gained notoriety for their willingness to depose and ultimately to kill their kings: Edward II in 1327, Richard II in 1399, Henry VI deposed from 1461 to 1470, killed in 1471, Richard III, killed in battle in 1485. There is little to suggest that the warlords and churchmen who presided over such killings had any more fundamental belief in popular sovereignty or the rights of the people than the warlords and bishops of France or Germany. Much of the turmoil of late medieval English politics was circumstantial and emerged from a combination of the personal incompetence of royalty, the pressures of war and finance, and the structural weaknesses both of central and local government. There is nothing in this to suggest that Magna Carta, although continually reconfirmed in parliament and used for the training of lawyers, placed at the head of many thousands of laboriously copied books of statutes, was in any sense responsible for English exceptionalism. It did nonetheless enshrine the principal that limitations upon monarchy lay at the root of English law, embedding such concepts as ‘liberty’, ‘custom’ and ‘right’ deep within the English political consciousness.22
The subsequent reinventions of Magna Carta can be only briefly touched on here. With the fading away of serfdom, the idea of the ‘free man’ came to define not just the rich but the majority of England’s population, rich and poor, male and female. The rights guaranteed under Magna Carta clauses 39 and 40 thus became available to all. As such, they were loudly trumpeted throughout the period of political crisis between king and nation in the seventeenth century, culminating in the execution of Charles I in 1649, and the expulsion of his son, James II, in 1688.23 By this time, Magna Carta was not so much read as mythologized. It had become a liberty document, believed in some vague way to uphold an age-old tradition of protection under the law for those opposing the arbitrary powers of the king.24 It was as such that it crossed the Atlantic in the seventeenth century, carried to America almost as a genetic birthright of the settlers established in the new colonies of Virginia, Maryland, Jamaica and elsewhere. Hence, from the 1760s onwards, the way in which Magna Carta was employed by the colonists to argue their right to representation, to freedom from arbitrary burdens or arrest, and to possession of those liberties claimed for all freeborn subjects of the British crown, in this instance no longer as an anti-royal instrument so much as a check upon the powers of an over-mighty parliament.25 To this phase of Magna Carta’s history there was as much make-believe and misunderstanding as there was sound history. A true understanding of the Charter’s purpose became overlaid by a desire to view it as a universal panacea.26
It is from such readings that many of the present misconceptions of the document emerge. It is today widely supposed that Magna Carta underpins a whole series of liberties peculiarly associated with English law. Democracy, parliament, ‘habeas corpus’, presumption of innocence in criminal trials, all of these things and more have in some way come to be attributed to a document that, in reality, deals with none of them. Even so, Magna Carta retains a surprise or two.
Take, for example, clause 33 of the 1215 charter, forbidding the construction of fish weirs on the rivers Thames and Medway. Originally included as a sop to the men of London, this clause was not in fact removed from the English statute book until 1970. Even now it continues to surface in English and Irish courts as perhaps the most frequently litigated clause in the entire document. The reason here is that clause 33 enunciates not just an archaic prejudice against fish weirs (a sort of trap made by driving wooden stakes into the bed of a river) but a principle, that navigation should be free and that certain types of property, in this case the navigable part of a river, should be considered public rather than private, as ‘res publica’ or, in terms that modern lawyers would understand, as rights according to ‘natural law’.27 Clauses 41 and 42 of the 1215 charter (in the case of clause 41 retained in the 1225 charter as clause 30) guaranteeing freedom of movement to foreign merchants, and freedom to the king’s subjects to enter and leave the realm, might likewise seem merely banal. However, in countries around the world today, where such rights are by no means guaranteed, and where passports can be obtained only by those in political favour, these are clauses that have a very real and contemporary resonance.
Above all, in a contemporary context, Magna Carta should remind us both of the element of compromise involved in negotiations between the sovereign and the political community, and of the distinction to be drawn between autocracy and a society such as that of England, even as early as 1215, boasting a relatively mature plurality of powers. In various parts of the world, even today, to establish a stamp club or a village choir, let alone any more controversial organization, can itself be regarded as a political act subject to control and disapproval by the ruling authorities. Magna Carta, by contrast, emerges from a society in which special interests were already recognized to possess their own liberties, rights and customs. Many of these special interests were, even by 1215, specifically commercial rather than feudal, associated with the international trade of the city of London. Clauses 13 and 35 of the 1215 Magna Carta, for example, not only guarantee the liberties of London and all other cities and ports, but define London weights and measures as the standard to be adopted universally throughout the realm. Clauses 41–2 guarantee the freedom of movement of both native and foreign merchants, save in time of open warfare. Even clause 33, on fish weirs, has a commercial aspect, given its intention to protect the navigation of the river Thames, and hence the river-born trade of London and much of southern England.
Those of us who consider ourselves fortunate to inhabit countries governed by the Anglophone tradition of law should avoid any temptation to complacency or self-congratulation. In 2015, it was all very well for English and American politicians to hold up their 800-year-old system of law for admiration in other parts of the world where due process is promised but seldom delivered, and where liberty and the rule of law are concepts manipulated more for the glorification of the powerful than for the benefit of the people at large. It should not be forgotten, even so, that for all its championing of liberty, Magna Carta did not oblige the English to rule well in Ireland or India or large parts of Africa. In Jamaica, it helped persuade British settlers that they enjoyed an equality more equal than that of others, with Magna Carta itself employed as a justification for dividing free from un-free, colonist from slave.28 In modern America, it is not at all clear that the impulse to export democratic values has entirely been divorced from the imposition of American values, by force where necessary.29
Nonetheless, even the myth-making that surrounds Magna Carta has its own significance. The myths that people tell about themselves help to determine their future behaviour in the world. Nations founded upon a concept of God-given right, manifest destiny or a sacred mission to subdue and suppress all other nations through might and triumphant will tend to behave in ways different, both militarily and commercially, from nations founded upon a sense of age-old liberty triumphing over tyranny, right over might. Nations that believe themselves to possess an 800-year-old tradition of the rule of law, a sovereign authority or monarchy placed under restraint, and a dispersed plurality of powers, will behave rather differently from those where such concepts are either unknown or despised. To that extent, the celebrations of 2015, however bizarre, did indeed serve a more general purpose. A mature democracy requires compromise between ruler and ruled. It also implies respect for laws that both ruler and ruled obey. Tradition here, and an appeal to the past, can prove powerful incentives to good government past, present and future.
I wrote various of the preceding remarks in January 2016, six months after the anniversary at Runnymede, and at a time when it was widely supposed that the referendum then pending on British membership of the European Union would be decided in defiance of calls for a retreat into past bigotry and isolationism. I write now, two years after Runnymede, at the end of 2017, with the referendum result declared, and with the very real prospect not just of a divorce between Britain and Europe but within the United Kingdom, between England and Scotland, and the majority of the population of Northern Ireland. As I hope to have shown here, the precedents for English withdrawal from Europe are not encouraging. The debacle of 1204, as a result of which King John was expelled from most of his French ‘empire’, led directly to 250 years of Anglo-French warfare, as kings of England struggled to recover their lost continental domain. It also provoked a crisis in public finances, both in England and, less well known, in Normandy whose barons and churches had previously depended heavily upon English revenues.30 More dangerously still, the events of 1204 drove a wedge between, on the one hand, a small part of the elite determined to recover their lost lands and glory in France, and an increasingly xenophobic English nation that had never cared for the French and that possessed no French interests to recover. From this fundamental disparity sprang many of the tensions between king and realm in the two centuries after 1204. The Hundred Years War, from the 1340s onwards, was not so much a campaign for ‘recovery’ as for conquest, as Englishmen of all sorts combined under the crown in the congenial business of slaughtering Frenchmen and plundering French property.
Magna Carta, another direct product of the events of 1204, played its own, not entirely innocent, role in the debacle of 2016. Certainly, it was widely cited by the advocates of ‘Brexit’ as a totem of the English ‘common law’ supposedly set at odds with the Roman law traditions of continental Europe. The peddlers of this interpretation either deliberately ignored (or more likely remained profoundly ignorant of) the fact that Magna Carta emerged from a far wider European tradition of law. From its classical, civilian defence of ‘res publica’ and condemnation of judicial corruption, via its Augustinian committee of twenty-five barons, through to the materials it shares in common with the Statute of Pamiers and the reforming decrees of northern Spain, Magna Carta was not just an English but a thoroughly European response to political crisis. Roman jurisprudence, the Judaic Old Testament, Germanic tribal assemblies, French feudalism and papal canon law all played a part in its making. Eight hundred years after it was first issued, Magna Carta remains both a highly charged and a potentially deceptive document.
In so far as the rebellion of 1215 and the making of Magna Carta have lessons to teach us, they suggest that the personal failings of a particular ruler (King John) or his entourage (the French-born constables and mercenaries of Magna Carta clauses 50–1) can undermine even the most ruthless of governmental systems. Without compromise and the careful management of the body politic, clashes between the ambitions of individual rulers and the will of an elite oligarchy (the barons) can lead to crisis and civil war. Yet from such clashes can emerge not only political turmoil, but in the case of Magna Carta, an insistence upon the rule of law, and (from this, albeit only after many further crises) a system of constitutional balance that fosters stability rather than chaos. Certainly, in 2017, as in 1215, 1715, 1815 or 1915, Great Britain seems to have lost none of its flair for constitutional crisis. In 2017, as in 1215, it is to be hoped, such crisis will foster constitutional innovation and the reinvention of the body politic. In 2017, as in 1215, the new, as ever, remains firmly rooted in the old.
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* One version of this paper has been published in Chinese. Others were published in Armenian, by the University of Yerevan, and in French under the auspices of the Université de Paris and the Université de Lille.
1 P. Clark, Mr Churchill’s Profession: Statesman, Orator, Writer (2012), p. xv and cf. pp. 81, 106, 110–11.
2 Studies here include J. C. Holt, Magna Carta (Cambridge, 1st edn. 1965; 2nd edn. 1992; 3rd edn. 2015); D. Carpenter, Magna Carta (2015); N. Vincent, Magna Carta: a Very Short Introduction (Oxford, 2012), and (with illustrations of each one of the surviving 24 original Magna Cartas) N. Vincent, Magna Carta: Origins and Legacy (Oxford, 2016).
3 For John, there are good biographies by S. Painter, The Reign of King John (Baltimore, Md., 1949); W. L. Warren, King John (New Haven, Conn., 1961), and S. Church, King John: England, Magna Carta and the Making of a Tyrant (2015).
4 Image in Vincent, Magna Carta: Origins and Legacy, p. 200.
5 For the ‘empire’, building upon the work of J. C. Holt, ‘The end of the Anglo-Norman realm’, Proc. Brit. Acad., lxi (1975), 223–65, see J. Gillingham, The Angevin Empire (2nd edn., 2001); D. Power, The Norman Frontier in the Twelfth and Early Thirteenth Centuries (Cambridge, 2004).
6 D. Crouch, ‘Baronial paranoia in King John’s reign’, and ‘The complaint of King John against William de Briouze’, in Magna Carta and the England of King John, ed. J.S. Loengard (Woodbridge, 2010), pp. 45–62, 168–79.
7 References in N. Vincent, ‘The seals of King Henry II and his court’, in Seals and their Context in the Middle Ages, ed. P. R. Schofield (Oxford, 2015), pp. 15, 28 fn.78.
8 The classic biography of Langton remains that by F. M. Powicke, Stephen Langton (Oxford, 1928), although see more recently P. Buc, L’Ambiguité du livre: prince, pouvoir, et peuple dans les commentaires de la Bible au Moyen Age (Paris, 1994), and various of the essays, especially those by Baldwin and Vincent, collected in Etienne Langton: prédicateur, bibliste, théologien, ed. L.-J. Bataillon, N. Beriou, G. Dahan and R. Quinto (Turnhout, 2010).
9 C. R. Cheney, Pope Innocent III and England (Stuttgart, 1976), pp. 303–56.
10 For the roots of the rebellion, the classic study remains J. C. Holt, The Northerners: a Study in the Reign of King John (Oxford, 1961; 2nd edn. 1992).
11 For the text of Henry I’s coronation charter as received by barons and king in 1215, see Holt, Magna Carta (1965), pp. 296–303; Carpenter, Magna Carta, pp. 310–15.
12 For the site, see T. Tatton-Brown, ‘Magna Carta at 800: uncovering its landscape archaeology’, Current Archaeology, ccciv (July 2015), 34–7, also of importance for demonstrating that the medieval ‘Runnymede’ is almost certainly not included within the land currently managed by the National Trust, representing what in the middle ages was known as ‘Long Meadow’.
13 For the text, see Holt, Magna Carta (1965), pp. 316–37; Vincent, Magna Carta: a Very Short Introduction, pp. 111–24; Carpenter, Magna Carta, pp. 36–69.
14 N. Vincent, ‘The twenty-five barons of Magna Carta: an Augustinian echo?’, in Rulership and Rebellion in the Anglo-Norman World, c.1066–c.1216: Essays in Honour of Professor Edmund King, ed. P. Dalton and D. Luscombe (Farnham, 2015), pp. 231–51.
15 N. Vincent, ‘English liberties, Magna Carta (1215) and the Spanish connection’, in 1212–1214: El trienio que hizo a Europa, Acta de la XXXVII Semana de Estidios Medievales de Estella 19 al 23 de julio de 2010 (Pamplona, 2011), pp. 243–61.
16 Cheney, Pope Innocent III and England, pp. 382–6.
17 For the various reissues, see F. Thompson, The First Century of Magna Carta: Why it Persisted as a Document (Minneapolis, Minn., 1925); Vincent, Magna Carta: Origins and Legacy, pp. 206–56.
18 J. R. Maddicott, ‘Magna Carta and the local community, 1215–1259’, Past & Present, cii (1984), 25–65.
19 J. R. Maddicott, ‘Edward I and the lessons of baronial reform: local government, 1258– 80’, in Thirteenth Century England I, ed. P. R. Coss and S. D. Lloyd (Woodbridge, 1986), pp. 1–30.
20 J. C. Holt, ‘The prehistory of parliament’, in The English Parliament in the Middle Ages, ed R. G. Davies and J. H. Denton (Manchester, 1981), pp. 1–28; J. R. Maddicott, The Origins of the English Parliament 924–1327 (Oxford, 2010).
21 G. L. Harriss, King, Parliament and Public Finance in Medieval England to 1369 (Oxford, 1975).
22 F. Thompson, Magna Carta: its Role in the Making of the English Constitution 1300–1629 (Minneapolis, Minn., 1948), pp. 9–136; J. H. Baker, The Reinvention of Magna Carta 1216–1616 (Cambridge, 2017), and for European comparisons, J. Watts, The Making of Polities: Europe, 1300–1500 (Cambridge, 2009).
23 In general, for English exceptionalism, see A. Macfarlane, The Origins of English Individualism (Oxford, 1978). For Magna Carta after 1500, see Thompson, Magna Carta: its Role, pp. 139–374.
24 J. Champion, ‘From Liber Homo to “free-born Englishman”: how Magna Carta became a “liberty document”, 1508–1760s’, in Magna Carta: the Foundation of Freedom, 1215–2015, ed. N. Vincent (2014), pp. 103–18.
25 A. E. Dick Howard, The Road from Runnymede: Magna Carta and Constitutionalism in America (Charlottesville, Va., 1968); J. L. Malcolm, ‘Magna Carta in America: entrenched’, in Vincent, Magna Carta: the Foundation of Freedom, pp. 121–35.
26 For the later history, see A. Pallister, Magna Carta: the Heritage of Liberty (Oxford, 1971); P. Linebaugh, The Magna Carta Manifesto: Liberties and Commons for All (Berkeley, Calif., 2008); M. Taylor and N. Vincent, in Vincent, Magna Carta: the Foundations of Freedom, pp. 137–69; Vincent, Magna Carta: Origins and Legacy, pp. 85–150.
27 R. H. Helmholz, ‘Magna Carta and the law of nations’, in Magna Carta, Religion and the Rule of Law, ed. R. Griffith-Jones and M. Hill (Cambridge, 2015), pp. 76–7, and for the repeal of clause 33 (clause 23 of the 1225 charter), see Pallister, Magna Carta: the Heritage of Liberty, pp. 100–1.
28 Vincent, Magna Carta: Origins and Legacy, pp. 109–10, citing J. P. Greene, ‘Liberty and slavery: the transfer of British liberty to the West Indies, 1627–1865’, in Exclusionary Empire: English Liberty Overseas, 1600–1900, ed. J. P. Greene (Cambridge, 2009), pp. 56–7, 65–6.
29 For freedom as something potentially enforced upon others, see P. Buc, Holy War, Martyrdom, and Terror: Christianity, Violence, and the West, ca.70 C.E. to the Iraq War (Philadelphia, Pa., 2015), esp. ch. 6, pp. 213–41.
30 For the effects upon Normandy, see A. J. Davis, The Holy Bureaucrat: Eudes Rigaud and Religious Reform in Thirteenth-Century Normandy (Ithaca, N.Y., 2006), pp. 94–6.