Published in History Today Volume 53 Issue 9 September 2003
Ralph V. Turner
considers how and why Magna Carta became a beacon of liberty in Britain and,
increasingly, in the United States.
- See more at: http://www.historytoday.com/ralph-v-turner/meaning-magna-carta-1215#sthash.tqr7zYU8.dpuf
Most students of English history know that King
John’s barons forced him to grant Magna Carta, the great charter of liberties
that placed the English king under the law. They know that this charter, agreed
by John in 1215 at Runnymede meadow and confirmed in definitive form by Henry
III in 1225, is a crucial document for England’s history, likely the best known
of all documents surviving from medieval England. Its attempt to impose the
law’s limitations on a ruler is summarised in Chapter 39:
No free man shall be taken or imprisoned, or
dispossessed or outlawed or exiled or in any way ruined, nor will we go or send
against him except by the lawful judgement of his peers or by the law of the
land.
Less familiar is the role of Magna Carta in the
centuries after 1225, when it was taken up periodically as the banner of
discontented subjects rallying against their monarch, and their programmes for
political reform included calls for its reconfirmation.
Following John’s death in 1216, the Great
Charter’s fate was in doubt, with a nine-year-old boy as the new king Henry
III. Yet the Charter took root and was quickly reissued, again in 1217, and in
its definitive 1225 version. When in 1258 the great men of the kingdom had
grown impatient with Henry’s incompetent rule, baronial reformers sought to
revive the 1215 Charter’s provision for a committee of barons to supervise the
king. Among their reform proposals was a demand that Henry ‘faithfully keep and
observe the charter of the liberties of England’. The rebellion failed, but the
royalist victory in 1265 did not end Magna Carta’s prominent position in
England’s political life, for part of the peace settlement was the King’s
renewed promise to observe it.
In Edward I’s reign (1272-1307), his subjects
turned to the Charter as a focus for discontent over his burdensome financial
exactions; and in 1297 with his Confirmation of the Charters (plural because
the 1225 Charter of the Forest was also confirmed), he acknowledged that Magna
Carta bound him. When dissatisfaction mounted once more in 1300, Parliament
sought additional concessions from Edward, set forth in the Articles upon the
Charters. A century after Runnymede, a precedent was set for parliaments to
seek reconfirmation of the Charter and clarification of its meaning.
In the fourteenth century, two parallel
movements were under way to enforce Magna Carta’s curbs on arbitrary royal
authority. One was a revival under Edward II (r.1307-27) and again under
Richard II (r.1377-99) of baronial committees to supervise royal government,
reminiscent of the mid-thirteenth-century reform movement. Another was
Parliament’s appearance as a permanent political institution, acting as the
protector and interpreter of the Great Charter. With a representative assembly
in place, it substituted for periodic baronial commissions as the favoured
mechanism for subjecting the king to the law. Fourteenth-century parliaments
sought royal confirmations of the Great Charter and drafted statutes
reinforcing its promises. Often the first item of parliamentary business was a
public reading and reaffirmation of the Charter, and as in the previous
century, parliaments often exacted confirmation of it from the monarch, resulting
in over forty reconfirmations by the early fifteenth century.
Magna Carta was seen as sacrosanct, and
statutes conflicting with it were ruled invalid; a statute enacted under Edward
III in 1369 declared, ‘If any Statute be made to the contrary, that shall be
holden for none.’ Other statutes re-interpreted and expanded the Charter’s
provisions. Noteworthy are measures enacted under Edward III (r.1327-77), known
to seventeenth- century critics of Stuart absolutism as the ‘six statutes’,
which spelled out precisely the Charter’s promise of what was coming to be
called ‘due process of law’. The third of these statutes is significant for
expanding the numbers protected by Chapter 39, replacing ‘no free man’ with
more inclusive language, ‘no man, of whatever estate or condition he may be’;
and promising that no one was to be dispossessed, imprisoned, or put to death
without ‘due process of law’, the first use of that phrase in the statutes.
By the mid-fifteenth century, Magna Carta
slipped into the shadows of high politics where it remained until the
seventeenth century, and the custom of periodic royal confirmations ended early
in Henry VI’s reign. The reigns of the Yorkist and Tudor monarchs saw strong
reassertions of royal sovereignty, and although people never entirely forgot
Magna Carta, they no longer rallied around it. The Charter’s ties to the common
law ensured its importance, however, for the land-holding classes looked to it
as a key protector of their property. Thousands took part in common law procedures,
notably trial by jury, and these inculcated the Charter’s principle of due
process of law and the plea rolls and the year books give evidence for
litigants’ citations of it. In law books studied by the emerging legal
profession, Magna Carta was the first of the statutes; and by the
late-fifteenth century, collections of statutes beginning with it were among
the earliest books to be printed in England. Appeals to specific provisions
appear frequently in late medieval plea rolls, proving wide familiarity with
the Great Charter, with lawyers and litigants sometimes twisting its technical
provisions for frivolous purposes. Yet by the end of the Middle Ages, it was
cited less frequently because statutes spelling out its principles afforded
added protection against an arbitrary king, binding him to act ‘according to
law’ or by ‘due process’ or ‘process of the law’.
Magna Carta played little part in the great
controversy of Henry VIII’s reign (1509-47), his break with the papacy; and he
often violated his subjects’ rights in enforcing conformity to his new Church.
Only occasionally did his victims, imprisoned without indictment or bail, claim
‘the liberty of an Englishman’, as guaranteed them by the Charter. A few
prominent Catholics claimed protection under its first chapter promising
freedom for the English Church, but most turned to the theology of universal
papal authority for arguments against Henry’s supremacy over the Church of
England. By the late Tudor period, though, radical Protestants such as the
Puritans presented a greater threat to royal supremacy over the Church of
England than did Catholics. They sought the Charter’s protection against
persecution by Elizabeth I’s new ecclesiastical tribunal, the Court of High
Commission. The High Commission, armed with Roman and canon law procedures,
forced dissidents to incriminate themselves, a practice that alarmed common
lawyers prejudiced against Roman law. Since many legal professionals were also
Puritans, they made common cause with Protestant militants.
Magna Carta took a central role in the
seventeenth-century conflict between king and Parliament, as common lawyers and
parliamentarians turned to a mythical ‘ancient constitution’ as a defence
against Stuart kings’ assertion of the royal prerogative. Historians, common
lawyers and Members of Parliament searched medieval manuscripts of early law
codes and forgotten royal charters for ammunition against James I and Charles
I. They treasured the Charter as a key element of England’s ‘ancient
constitution’, a body of laws and customs supposedly surviving from pre-Roman
Britain that imposed limits on the king’s power over his subjects.
The champion of the doctrine of the ancient
constitution and the revival of Magna Carta was Sir Edward Coke (d. 1634). Coke
conceived of the English constitution as a chain of royal confirmations of
English law, stretching back to the age of Edward the Confessor and beyond.
Because he viewed the Great Charter as a reaffirmation of liberties enjoyed by
the English people from time immemorial and still binding because of its many
confirmations over the centuries, he urged Parliament to demand a royal
reconfirmation. Coke and his companions opposing the early Stuarts construed
the Charter anachronistically and uncritically. They were convinced that its
clauses reaffirmed such longstanding rights of the English people as trial by
jury and the right of habeas corpus, thought to be derived from law-codes and
royal charters predating John’s grant.
The civil wars of 1642-48, kindled by Coke’s
revival of the Great Charter, had more extreme consequences than the 1215-16
rebellion, as it resulted in military dictatorship, the King’s execution and a
decade of experiments in government. But the Glorious Revolution of 1688-89,
culminating in the deposition of James II and establishment of Parliament’s
supremacy, seemed a repetition of the baronial rebellion against King John. The
settlement following William and Mary’s accession included a Declaration of
Rights, enacted by Parliament as a new Magna Carta.
Sir Edward Coke’s portrayal of England’s past
was now fashioned into the ‘Whig interpretation’ of history, with a
triumphalist view of liberty’s ceaseless advance. Whig writers ranked the
1688-89 Revolution alongside King John’s 1215 concessions, convinced that it
reconfirmed an ancient compact between king and people, restoring fundamental
law and limited monarchy. Debate late in Charles II’s reign over excluding his
brother, the future James II, from the succession had led royalist propagandists
to challenge Coke’s myth of the ancient constitution. Tories turned to the
royalist historians’ rediscovery of the ‘feudal law’ and Norman ties of
lordship and vassalage that had made the barons dependents of the king, holding
their lands in return for services to him. Royalist writers tended to dismiss
Magna Carta as a feudal document with little long-term relevance, and in fact
royalist historians such as Robert Brady (d.1700) painted a more accurate
picture of the medieval past than Coke. Nonetheless, the Whig interpretation
triumphed in the eighteenth century. Its victory was symbolised by Brady’s
replacement as Keeper of Records at the Tower of London, curator of the
kingdom’s historical records, by William Petyt, a historian supporting Coke’s
ancient constitution.
Early eighteenth-century Tories, languishing
without power under the first two Georges, replaced their faith in unrestrained
royal power with defence of the ancient constitution, charging the Whig
majority with undermining historic English liberties. Tory support for the
ancient constitution drove Whig defenders of their parliamentary leader, Sir
Robert Walpole, to stress the superiority of the post-1688 constitution, and to
question Magna Carta’s relevance. One Whig writer, repeating earlier royalist
arguments, now maintained that the barons alone had gained from the Charter.
After George III’s accession in 1760, American colonists and their English
sympathisers began to question parliamentary sovereignty, and radical political
movements challenged complacency about the glories of the English constitution.
Opponents of Parliament’s monopoly on power denounced its political
machinations, graft and corruption. The reformers were a diverse group ranging
from radicals inspired by the rationalism of the Enlightenment to religious
dissenters looking back to a golden age of Oliver Cromwell and the Puritan
parliaments.
With radical journalists stirring up public
opinion against Parliament, freedom of the press came under attack. One radical
writer, Arthur Beardmore, arrested for seditious libel in 1762, showed an eye
for publicity, arranging to be arrested while teaching Magna Carta to his young
son. He became a popular hero, and a print picturing him showing the Charter to
the boy circulated widely. Another radical, John Wilkes (d. 1797), imprisoned
in the Tower in 1763 for seditious libel, transformed his prosecution into a
campaign for the people’s rights against oppression, invoking Magna Carta,
‘that glorious inheritance, that distinguishing characteristic of the
Englishmen’. The radical movement proved short-lived, however. After 1789,
radical sympathy for the French revolutionaries alienated moderates, and the
government took such harsh measures against them that reaction and repression
soon became the rule in Britain. A satirical article in a radical newspaper
noted that the Habeas Corpus Act (1679) was descended from ‘two notorious
traitors of old times, called Magna Carta and the Bill of Rights’, and declared
that the Charter was ‘so very old and infirm that he seldom stirs abroad, and
when he does he is sure to be insulted, and is very glad to get back to his
lodgings again’.
Although hostility kindled by the French
Revolution stalled any innovation, agitation for wider representation in the
Commons revived after 1815. Nineteenth-century popular movements for
parliamentary reform such as Chartism turned to Magna Carta for support. Other
tendencies, however, undermined reverence for the Charter and England’s
medieval constitutional legacy, especially Bentham’s radical Utilitarian
philosophy. Its rational and pragmatic outlook led lawyers and judges to cease
to venerate the common law simply because of its antiquity and to view it as a
stumbling block to progress. Advocates of legal reform understood that revising
the common law was impossible without first reforming the House of Commons, and
once this was achieved in 1832, Utilitarians could turn to reform of English
law. To them, the triumph of Parliament at the end of the seventeenth century
meant the Great Charter had lost its special place as fundamental law standing
above statute law; the nation’s legislative assembly had replaced it, however
inadequately, as the protector of the people’s liberties.
By the mid-nineteenth century both politicians
and the lawyers favoured reorganisation of the law, and striking obsolete
legislation from the statute books began in earnest with the first Statute Laws
Revision Act of 1856. Two more acts followed in 1861 and 1863, repealing
hundreds of old laws; these acts and subsequent legislation abrogated much of
Magna Carta. Some in the Commons sought assurances that no statutes considered
‘stones in the edifice of the constitution’ would be abolished, and one MP
offered an amendment to preserve Magna Carta and other constitutional
landmarks, but this failed. The ease with which abrogation of clauses of the
Charter was achieved is surprising, a striking display of parliamentary
sovereignty. During Commons debates, the Solicitor-General dismissed the Great
Charter’s significance, reminding members that ‘as signed by King John’ it was
not a statute and could be consulted only in ancient manuscripts. Stricken from
the statute books by the 1863 legislation were seventeen of the 1225 Charter’s
chapters, many of them ‘feudal’ clauses that had lost their practical effect
two centuries earlier when tenures by knight-service were abolished. By the
1880s, many Britons felt that further pruning of the laws was needed, and still
more chapters of the Charter were repealed.
A few provisions of Magna Carta remained on the
statute books into the twentieth century. In 1965, Parliament created the Law
Commission for statute revision, and the commissioners recommended repeal of
laws that ‘cannot be shown to perform a useful function’. They proposed a bill
repealing over 200 laws, including eight chapters of the Great Charter that
they found to be ‘of no practical significance today, being either obsolete or
superseded by the modern law on the subject’. Legislation that followed in 1970
left only four chapters of Magna Carta intact: chapters 1, 13 and 39 of King
John’s Charter, and 37 of the 1225 version. The first Chapter promised freedom
for the English Church, and Chapter 13 (9 in the 1225 version), guaranteed the
City of London its ancient liberties and free customs. Chapter 39 (29 in the
1225 Charter) was the key provision in Magna Carta, curbing the crown’s power
to pursue individuals beyond the law. Chapter 37, found only in the 1225
Charter, contained a clause important for the perpetuity of Magna Carta’s
liberties, ‘and if anything contrary to this [charter] is procured from anyone,
it shall avail nothing and be held for nought’.
Despite this legislative assault on Magna
Carta, the Whig historical interpretation of its place in British history had
become orthodoxy, the semi-official presentation by the Victorian era. For Whig
historians, the 1215 baronial rebellion marked a major step in England’s long
march toward limited monarchy and parliamentary supremacy; and the Glorious
Revolution of 1688-89 marked further advance toward the orderly growth of
parliamentary democracy, religious toleration and bourgeois values. This
interpretation fostered the ‘idea of progress’, presenting history as modernisation,
slow but steady evolution toward higher civilisation. It also generated
enormous pride among nineteenth-century Britons, convincing them of their
island-kingdom’s destiny to be a model for other nations seeking freedom and
unity as well as justification for their rule over a colonial empire. By the
mid-nineteenth century, a rising scientific and materialist world-view brought
with it new notions of the nature of history that challenged this mythic
version of the past and heralded drastic changes in the nature of history. The
later Victorian age was a time when ‘a truly historical consciousness’
developed, and the discipline of history fell into the hands of professionals
and specialists, many of whom were ‘debunkers’ of hallowed historical myths.
The Charter’s importance was seen differently
across the Atlantic. As the Great Charter’s relevance receded in eighteenth-
and nineteenth-century England, it remained fundamental for the new nation
growing in North America. Today, Magna Carta seems to enjoy greater prestige in
the United States than in the United Kingdom. Indicative of this is the
monument at Runnymede erected in 1957 by the American Bar Association to
commemorate the Charter. Edward Coke and other opponents of the Stuarts had
resuscitated it at the very moment that the first English settlements were
being founded in the Americas, and the settlers in the thirteen colonies had
held themselves to be fully English, possessing all rights guaranteed to their
compatriots at home by the Great Charter and the common law. The charter of
each colony, beginning with James I’s charter for the Virginia Company in 1606,
included protection for colonists’ rights as free English subjects. The
colonists held Magna Carta to be fundamental law, standing above both king and
Parliament and unalterable by statute. Americans’ dedication to fundamental law
increased in the years after 1688, an age when British political thinkers were
discarding it in favour of parliamentary sovereignty. Their commitment to such
higher law as Magna Carta fortified their inclination toward written
constitutions.
The 1225 version of the Great Charter was
published in Philadelphia as early as 1687, part of a tract authored by William
Penn, founder of the Quaker colony. Sir Edward Coke’s interpretation of the
Charter influenced these Americans. Subscribing to Coke’s anachronistic views,
they held it to be the guarantor of their ancient English liberties, including
rights to trial by jury and the writ of habeas corpus. They saw the
seventeenth-century struggle against the Stuart kings as part of their own
history, and they accepted the Great Charter as part of the ancient
constitution, providing them with the same protections enjoyed by their cousins
in the mother country. In the decade before the outbreak of the American
Revolution in 1775, colonial lawyers and pamphleteers turned to Magna Carta for
support against the government across the Atlantic. The first Continental
Congress adopted a resolution in October 1774 claiming that the colonists were
doing ‘as Englishmen their ancestors in like cases have usually done, for
asserting and vindicating their rights and liberties’. In 1775, Massachusetts
adopted as its state seal an image of an American patriot holding a sword in
one hand and Magna Carta in the other.
After the United States won independence, the
federal Constitution became the new nation’s fundamental law. The Founding
Fathers, faithful to seventeenth-century doctrine placing the Great Charter
above statute law, accorded the Constitution a similar lofty position as
fundamental law that can be overcome only by a Supreme Court ruling or a
constitutional amendment, invulnerable to acts of Congress. By the eighteenth
century, with Britons sure of Parliament’s superior place in the government and
ideas of fundamental law fading, the British constitution consisted of a series
of statutes that parliamentary majorities could abolish or alter, so long as
they were supported by public opinion. As the states considered ratifying the
federal Constitution, anti-federalists objected to its lack of an enumeration
of citizens’ rights, such as Magna Carta or the 1689 Bill of Rights; and to win
ratification by the states, the first ten amendments to the federal
Constitution were adopted. Among the amendments, ratified in 1791 as the Bill
of Rights, was an article promising that no person shall be ‘deprived of life,
liberty, or property without due process of law’, paraphrasing the Charter’s
thirty-ninth chapter.
Americans today accord Magna Carta
semi-religious veneration, citing it constantly in political debates, judicial
opinions and newspaper editorials. The United States Supreme Court first cited
the Charter in an 1819 opinion, and American jurists still cannot resist citing
it in their decisions. Supreme Court citations of the Charter now number over a
hundred. A federal district judge even cited it in Paula Jones’ sexual
harassment suit in 1994 against President Clinton. She ruled against delaying
the suit during the President’s term of office, stating:
It is contrary to our form of government, which
asserts as did the English in the Magna Carta and the Petition of Right, that
even the sovereign is subject to God and the law.
Whatever the hyperbole and distortions of
history, jurists’ references to the Charter indicate its lasting place as a
symbol of limited government in American legal and political thought.
Further Reading:
Herbert Butterfield, The Whig
Interpretation of History (W.W. Norton, 1965), reprint of 1931 edn.
J.C. Holt, Magna Carta and Medieval Government (Hambledon,
1985); J.C. Holt, Magna Carta, 2nd edn. (Cambridge University
Press, 1992); A.E. Dick Howard, The Road from Runnymede: Magna Carta
and Constitutionalism in America (University of Virginia Press 1968);
Anne Pallister, Magna Carta, the Heritage of Liberty (Oxford
University Press, 1971);. Faith Thompson, The First Century of Magna
Carta: why it Persisted as a Document (University of Minnesota Press,
1925); Faith Thompson, Magna Carta: its Role in the Making of the
English Constitution, 1300-1629 (University of Minnesota Press, 1948);
Ralph V. Turner, King John (Longman, 1994).
Ralph V. Turner is distinguished research Professor of History
Emeritus, Florida State University, and the author of Magna Carta published
by Pearson Education.
