Charter of liberty

Magna Carta was originally the product of specific political circumstance. Above all, it was a reaction to King John and his oppressive and unsuccessful rulership. He came to the throne in 1199, succeeding his brother Richard the Lionheart as ruler of not just England but a large proportion of France as well. However, in 1202-04 he lost the core of his lands, Normandy and Anjou, to the king of France. He then alienated the pope, and was excommunicated in 1209. In 1213, in order to be reconciled with the pope, he had to accept papal lordship over England. And his final effort to regain his lost French lands failed in 1214. Rebellion grew, and once London had fallen to the rebels in May 1215, the king’s position was grave. In mid-June, at Runnymede, he had to grant the “peace and liberties” recorded in Magna Carta.

Why did the rebels seek a charter of liberties, rather than simply attempt to topple the king? The latter had apparently been their intention in 1212, when there was a plot to murder John and replace him with a new king. No previous rebellion had sought an elaborate and written programme of reform. Yet constitutional ideas had been growing and were debated. Individual towns had received charters that were limited precursors of Magna Carta. And in London, people were saying that “right and justice ought to rule in the kingdom rather than the perversities of arbitrariness; law is always made by right, but arbitrariness and violence and force are not right”.

The problem with a king as slippery as John was to get him to stick to his promises, and for this reason it was a good idea to have them written down in a great charter. But the problem was also more fundamental than just the king’s personality. It is the perpetual difficulty of creating authority above the state. The United Nations today can have a charter, but without an army it can often be ignored. In 1215, the rebels set up a body of 25 leading men who were to force the king to obey Magna Carta. He was no longer the supreme lord in his realm. And the 25 men did have an army, for they promised to supply over 1,000 knights — heavily armed and armoured mounted troops — to secure the king’s compliance.

Still, John escaped the terms of the charter. He had the document annulled by the pope on the grounds that it had been extracted under duress and was detrimental to the king’s rights and dignity. Civil war escalated. Yet the charter was to survive. When John died in 1216, his son Henry III was very young and in desperate need of support. Magna Carta was therefore reissued in his name, with some of the most demeaning clauses removed. Such reissues would be frequent in the 13th century as kings sought support or money; the clauses that today survive on the statute book are in fact based on the reissue of 1225, not on the original grant of 1215.

In the 16th century there was a rare period of quiet in the use of Magna Carta. It is not mentioned in Shakespeare’s play King John. But at this time, interest — in particular in the clauses cited earlier — was growing. It reached a peak in the quarrels between king and parliament that led to the English Civil War in the middle of the 17th century. During the brief English republic of the 1650s, Oliver Cromwell told parliament that “in every government there must be somewhat fundamental, somewhat like a Magna Charta, that should be standing and be unalterable”. Those who disliked Cromwell’s own tendency to despotism invoked the charter against him.

Magna Carta has continued to flourish in the modern period, in particular in the United States. In 1884, a Supreme Court judgment contrasted the English system of parliamentary sovereignty unfavourably with US constitutional arrangements: “In this country a written constitution was deemed essential to protect the rights and liberties of the people and the provisions of Magna Carta were incorporated into the Bill of Rights.” In New York in 1940, the composer Kurt Weill, a refugee from Nazi Germany, wrote his “Ballad of Magna Carta”, a piece mercifully rarely performed. And the US Supreme Court continues to cite Magna Carta often as the basis for habeas corpus, the prevention of detention without trial. In April 2004, Justice Stephen Breyer referred to the right of detainees at Guantanamo Bay to “‘due process of law’ in the words of Magna Carta”.

It is not just in the US that supreme courts hear or speak about Magna Carta. In September 2014, the Indian Supreme Court traced back to Magna Carta Article 21 of the Constitution: “No person shall be deprived of his life or personal liberty except according to procedure established by law.” Meanwhile, the phrase “Magna Carta” has become a quick way to establish the standing of any protection of liberties. When in South Africa, Mohandas Gandhi referred to the 1914 Indian Relief Act as the “Magna Carta of our liberty in this land”.

In 2015, Magna Carta has been celebrated well beyond England and the US. There have been events in the West Indies and Australia, Canada and New Zealand, the Republic of Macedonia and Slovenia, Chile and Peru. Such celebration confirms the view of the recently deceased English law lord, Tom Bingham, that Magna Carta “can plausibly claim to be the most influential secular document in the history of the world”.

The writer, professor of legal history at the University of St Andrews, is author of ‘The Oxford History of the Laws of England, 871-1216’