The Truth About Magna Carta
Magna Carta is held in great reverence by the British, who mistakenly associate it with things like habeus corpus and protection from arbitrary imprisonment. This is all nonsense.
Britain was not founded or created at any particular moment, nor was there any event which marked definitely its becoming a nation; such as the signing of a declaration of independence. Instead, the British have the Magna Carta. Before Magna Carta, there are a few memorable dates such as 55 BC and 1066 AD, along with a handful of notable kings such as Alfred the Great, William the Conqueror and Richard the Lionheart. These rulers seemed to do pretty much as they pleased. From 1215 onwards though, following King John placing his seal on the great charter which the barons presented to him, we know that we have been living in a nation where the rule of law is paramount. Even the monarch is bound by the law to respect the rights of his or her subjects
Most of us think that we know the story of the Magna Carta; how the barons grew tired of King John’s arbitrary rule and the way in which he was riding roughshod over ancient liberties and oppressing the common people. They put together a set of principles, including habeus corpus, which guaranteed that from then on every person in the kingdom would have the right to a fair trial and nobody could be detained without a just cause. In fact if there is one thing most people know about Magna Carta, it is that it stops people being locked up without recourse to the courts. Isn’t that what habeus corpus is all about? That the Magna Carta was actually a reactionary document, specifically devised to deny ordinary people any rights and to reverse progressive changes made in the law some years earlier, sounds shocking and even absurd to modern ears. Before going any further, it might be helpful to look at the popular image of the events at Runnymede eight hundred years ago, just to remind ourselves of what we think we know about the matter. In other words, before examining the historical facts; let us look first at the myth, as we have received it today.
Our ideas about the Magna Carta are usually drawn not from historical or contemporary sources, but rather from a nineteenth century re-imagining of what took place at Runnymede on 15 June 1215. The version of Magna Carta with which we are most of us familiar might not inaptly be called a romantic narrative or, less charitably, a Victorian fairy story. The affection which the Victorians developed for Magna Carta, and which led to their creating an alternative version of reality had its origins in a romantic fantasy.
As the less attractive aspects of the Industrial Revolution, by-products such as urban slums and ugly factories with their chimneys belching forth smoke, became increasingly plain to see, there were attempts in nineteenth century Britain to create an imaginary past. This showed, to begin with, in a revival of Gothic architecture; new buildings such as railway stations and law courts were designed in a conscious effort to hark back to another age. Even provincial town halls were tricked out to look like cathedrals or fairy-tale castles. The Palace of Westminster in London, more commonly known as the Houses of Parliament, is a magnificent example of what became known as the Gothic Revival style of building. The towers and pinnacles of this iconic building were deliberately designed to look archaic and centuries out of date. Later on, there was a craze for everything to do with the Middle Ages. The Pre-Raphaelite Brotherhood of artists was founded. They and their followers turned out paintings of an idealised, medieval world; much of it based upon the legends of King Arthur and his court at Camelot. The Poet Laureate, Alfred Lord Tennyson, turned the medieval epic of Mallory’s Mort d’Arthur into verse and dedicated the Idylls of the King to Queen Victoria. She and her husband posed for paintings and statues in which they were depicted in fancy dress to represent historical figures from the medieval period. Landseer, for example, painted them as the fourteenth century monarchs Edward III and Queen Philippa.
The uncertainties of the Victorian Age found an antidote in the supposedly more pious and chivalrous era between the Norman Conquest and the Tudors. Life in those days was portrayed as being gentler and having more noble values than those of the counting house and wharf; rampant commercialism being blamed for many of the ills of nineteenth century society. There was a yearning for a pastoral way of life, before industry had taken over and the cities of Britain expanded to bursting point and beyond. William Morris and the Arts and Crafts movement fixed upon the fourteenth century as the epitome of this vanished golden age; designing wallpaper, furniture and textiles to fit in with this fantasy world.
It was as part of this romantic movement that Magna Carta emerged as a talisman or touchstone which symbolised all that was good about England; and, by extension, Britain. Instead of the preoccupation with the mercenary and mercantile world of trade which characterised Victorian Britain, the myth grew that there had once been a time when ideals of justice and concern for the rights of ordinary men and women had been the motivating force in the country’s history. Powerful men in those day had been prepared to go to war with the king to ensure that the liberty of his subjects was respected and that everybody was entitled to redress in the courts and protection from unjust imprisonment and so on. This version of events was enthusiastically taken up by artists and writers and we cannot do better than look at an example from the time to see how the Magna Carta became known to everybody in nineteenth century Britain as the country’s supreme creation, which was destined to be Britain’s gift to the whole world.
We turn to a quintessentially English poet of the era to give his version of the meaning of Runnymede. Kipling’s Reeds at Runnymede was commissioned for C. L. R. Fletcher’s A History of England. This book was written for children, thus ensuring that the rising generation in Edwardian Britain would imbibe the Magna Carta myth in its purest and most distilled form. It would be tedious to quote this poem in its entirety, but a few extracts will give the flavour of the thing;
When through our ranks the Barons came,
With little thought of praise or blame,
But resolute to play the game,
They lumbered up to Runnymede,
At Runnymede, at Runnymede
Your rights were won at Runnymede!
No freeman shall be fined or bound,
Or dispossessed of freehold ground,
Except by lawful judgement found,
And passed upon him by his peers,
Forget not after all these years,
The Charter Signed at Runnymede
The marvellous and almost surreal notion of all those medieval barons ‘playing the game’, like boys in Tom Brown’s Schooldays, is an enchanting one!
Magna Carta had of course been known to politicians and lawyers for centuries, but it was the Victorians who brought it to the forefront of the national consciousness, so that by the end of the nineteenth century, most people in the country had heard of it and were aware of its supposed significance. Throughout the twentieth century, this universal familiarity became entrenched, so that in 1959, when an episode of the radio comedy series Hancock’s Half Hour was broadcast, Tony Hancock’s immortal line, ’Does Magna Carta mean nothing to you? Did she die in vain?’, was seen as wildly amusing. The joke only works of course if everybody listening may be assumed to know at the very least that Magna Carta was a document and not a person.
Properly to understand Magna Carta, we must look at the age which produced it and try to work out the motives of those who put it together. Let us begin with that great icon of British values, habeus corpus; which literally means in Latin, ’You have the body’. This is the legal principle which protects us from arbitrary arrest and unlawful imprisonment by the government. It was much discussed when Tony Blair’s government was trying to increase the length of time for which suspected terrorists were being held. It was hoped to be able to extend their detention without trial to ninety days, whereupon many people, both inside and outside parliament, raised the cry of Magna Carta and habeus corpus, and the proposal was defeated.
The first thing we need to know is that habeus corpus does not have anything at all to do with Magna Carta. It originated fifty years earlier, in 1166; the very year that King John was born. The monarch at that time was Henry II and when he came to the throne in 1154, England was recovering from a civil war between King Stephen and the Empress Mathilda. Both sides had hired mercenaries and when the war ended, these men became robbers and brigands; threatening to cause a complete breakdown of law and order throughout the whole country. Many barons ruled their lands as though they were answerable to nobody; not even the king. There was also the problem of what amounted to a parallel realm, operating within Henry II’s kingdom. This was the church. In the twelfth century, a sixth of England’s population were clergy of one sort of another, including many monks and nuns. The church was jealous of its special status and tried to prevent the Crown from having any jurisdiction over the clergy.
Henry was determined to reassert royal authority over everybody in the realm; whether barons or bishops. How this worked out as regards the clergy may be seen in the unfortunate death of Thomas Becket in 1170 . When he found that he was dealing with a particularly recalcitrant Archbishop of Canterbury, one who was determined to defend the rights of the church; Henry simply had him murdered. Dealing with the barons was more tricky, because Henry had no wish to precipitate another civil war and the barons were fiercely protective of what they saw as their ’rights’. Eroding the power of the barons would need to be done by more indirect methods. One way of achieving this end was by establishing a new legal system, whereby judges appointed by the king himself travelled around the country, dispensing justice.
At the beginning of Henry‘s reign, in the aftermath of the bitter civil war, some of the barons had built castles without permission and were behaving as though they were a law unto themselves; inflicting punishments or imprisoning people according to their individual whims. After moving against these men, who threatened the unity of the realm, the king set about reforming the law through declarations such as the Assize of Clarendon in 1166 and the Assize of Northampton, ten years later. These set out a new series of rules which wrested power from the barons and placed it in the hands of the King’s judges, who would travel around the country dispensing justice. This was a very unpopular move with the barons; reducing their authority as it did. Habeus corpus originated with the Assize of Clarendon, rather than the Magna Carta. Even then, it was a concept, rather than a law. It was to be another five hundred years, not until 1679, before habeus corpus was actually incorporated into the law of England.
In the humorous classic 1066 And All That, it is said that the barons had many important duties; one of which was ‘keeping up the Middle Ages’. This was in fact no more than the literal truth, because keeping up the Middle Ages was precisely what the barons wished to do. The idea that the way in which society was then constituted might in any way be imperfect was anathema to the English nobility. When King John continued the process of depriving them of their ‘rights’ and bleeding them dry financially into the bargain, the barons revolted. Taxation by the crown had been a sore point for years and John was extorting six times as much to pay for his foreign wars than his brother Richard had ever done. A rebellion began, the aim of which was partly to reduce the financial burden being laid upon the barons and also to roll back some of the reforms of the last few decades. In short, to take power back from the king.
There were only a few dozen barons in the whole country and in order to gain the support of the rest of the population, it would be necessary for them to represent themselves as fighting for the rights of ordinary people; not just their own mercenary self-interest. To this end, the barons put together a long document which set out what they claimed was an attempt to save the common people from being oppressed by the king. It was in reality nothing of the sort. All but one or two of the sixty three clauses in the charter had been devised with the privilege of the powerful men opposing King John in mind. Some of it though was so cunningly worded that it might, at first sight, have appeared to be an appeal made on behalf of the farmers, workers and citizens of England. This long and complicated list of demands became known as the Magna Carta and the intention was to persuade King John to put his seal to it. Although ’Magna Carta’ is usually translated as ‘great charter’, it was really only given this title because of its great length; not because there was anything momentous about it. Its aim was nothing less than to restore the power of the barons at the expense of everybody else in the country.
It is time to look in detail at what the Magna Carta did and did not offer to the English people. Anybody who has not actually read the thing, and that includes the overwhelming majority of people in this country, might have the vague idea that the Magna Carta is something along the lines of the United Nations Universal Declaration of Human Rights. Nothing could be further from the truth and the plain fact is that 99 per cent of the famous charter has no conceivable relevance for anybody who is not actually living in the Middle Ages! One or two examples might serve to illustrate this point.
Let us look at clause 57;
In cases where a Welshman was deprive or dispossessed of anything,
without the lawful judgement of his equals, by our father King Henry or our
brother King Richard, and it remains in our hands or is held by others under
our warranty, we shall have respite for the period commonly allowed to
crusaders, unless a lawsuit had been begun, or an enquiry had been made
at our order, before we took the cross as a crusader. But on our return from
the crusade, or if we abandon it, we will at once do full justice according
to the laws of Wales and the said regions.
Unless you are a Welshman living at the time of the crusades, it has to be said that this clause is not likely to have any bearing on your day to day life. Other clauses are equally meaningless to anybody not at war with the King of England during the thirteenth century. Clause 59 begins, ‘With regard to the return of the sisters and hostages of king Alexander of Scotland…’ Clause 33 calls for the removal of fish weirs from the Thames and the Medway. So it goes on for sixty three clauses; with nothing relating to anything other than the concerns of rich landowners in medieval England.
Almost the whole of the Magna Carta is taken up with matters relating to the social structure at that time of the barons and church. These concern taxes and inheritance and would not have affected the man and woman in the street in any way. Sometimes this is disguised, in order to make it appear that the charter offered some benefit to the ordinary citizen. For instance, one clause promises that the king will, ‘Restore lands, castles, liberties and rights to anyone from whom we have unjustly taken them.’ In this context of course, ‘liberties and rights’ have reference only to property and inheritance rights, which for the average man in early thirteenth century England would have been wholly irrelevant.
Other clauses appear at first sight to offer some benefit to those other than the barons and their families, but one must look very hard for these and sift patiently through an awful lot of dross to find these one or two specks of gold. Before looking at these, we must consider something about society at that time which is often overlooked and this is the division between ‘free’ and ‘unfree’ people. About half the population of England in 1215, at the time that the Magna Carta was issued, were ‘villeins’. These were men and women who were tied to the land and who could not move from their homes without the permission of their landlord. Their position was roughly analogous to that of the serfs in Imperial Russia. If they were not quite slaves; they were certainly not in any sense free. This section of the population rates hardly any mention at all in Magna Carta; the needs and rights of half the people living in the country at that time were irrelevant. The class is mentioned just once, in a clause which says that ‘a fine imposed on a villein must not deprive him of the means to carry on farming’; a move which was in the interest of the landed gentry, rather than the villein, because a tenant farmer who was unable to farm would be little use to a landlord. Apart from this single reference, there is a vaguely worded requirement that ‘all subjects of the realm’ should benefit from the ‘customs and liberties’ contained in the Magna Carta. Since there was no mechanism to enforce this; the statement was meaningless.
This then was the charter which was presented to King John at Runnymede, during a truce in the armed struggle between the monarch and his barons. From the very opening clause, which was addressed to, ‘all the free men in our realm’; Magna Carta was specifically directed towards the benefit of the wealthy and free; not the ordinary peasant, bound to his master’s land. The first fourteen clauses dealt only with questions of taxation and property rights, which were of little interest even to the ‘free’ men whom the charter would supposedly benefit. Not until clause 39 do we reach the bits which supposedly form the basis for our modern-day writs of habeus corpus. Once again, these specifically exclude half the people in the country at that time;
No free man shall be seized or imprisoned, or stripped of his rights or
possessions, or outlawed or exiled, or be deprived of his standing in any
way, nor will we proceed with force against him, or send others to do so,
except by lawful judgement of his equals or by the law of the
land.
The following clause goes on to assert that, ‘to no man will we sell, to no one deny or delay justice’.
As we have seen, this notion, that people would not be arbitrarily imprisoned, without recourse to the law, was really introduced not in the Magna Carta, but almost 50 years earlier in the Assize of Clarendon. It was this attempt to take charge of the legal system and bring the administration of justice under centralised control, which caused such anger among the barons and led, in the fullness of time, to the struggle between King John and his barons. Readers might wonder why, if the barons disliked the idea of the monarch taking charge of the courts and administering the law, that a clause guaranteeing access to justice should have been inserted into the charter which they presented to the king. The answer is simple.
To gain the support of the free citizens, the barons had at least to appear to be fighting for their interests, as well as their own. Inserting clauses promising benefits to ‘all free men’ was a great way of achieving this end. In May 1215, the month before King John agreed to the terms of the Magna Carta, the City of London opened its gates to the rebels; so impressed were they with the supposed advantages of siding with the barons against the king. Of course, there was more to it all than met the eye. The real purpose of the charter was not to give anybody other than the rebellious nobles any power. They hoped to do away with the king’s authority entirely. One of the clauses made provision that;
The barons shall choose twenty five of their number who with all their
might shall ensure that the peace and liberties granted by our charter are
properly observed and maintained
It went on to say, ‘Anyone in the land who wishes may take an oath to obey the twenty five’.
What was really being planned was that the barons themselves should take over the country and administer it in any way they saw fit. Justice would be doled out according to the old customs and the reforms instituted by Henry II would be swept away. This charter would have made feudalism the way of life in Britain for as long as the barons remained strong. For most people, this would be worse than living even under a corrupt and greedy monarch like John and for the villeins, it would mean that their freedom was officially crushed for the foreseeable future. It was a document practically guaranteed to divide the realm and provoke a civil war. Had its provisions been adopted in full, it would have meant the end of any sort of freedom for at least half the men and women of England.
The meeting at Runnymede, where King John agreed to issue the Magna Carta in his own name was followed shortly afterwards by the resumption of war with the barons. After John’s death in 1216, his nine year-old son Henry became king; although rule was delegated to a Regent. Two revised versions of the Magna Carta were issued in October and November of that year. The barons were defeated the following year and in 1225, yet another revision of the Magna Carta was made. In 1264 and 1297, there were further issues; each leaving out more and more of the original charter. Often, when people today quote from the Magna Carta, it is not the document agreed by King John to which they refer, but one of these later revisions.
Anybody who knew nothing of the almost superstitious reverence in which the Magna Carta is held, both in this country or abroad, and read it for the first time, would probably not see that it had any particular relevance to the modern world. Such a person would be perfectly correct in forming such a view; as even the legal system of the United Kingdom has acknowledged over the years. In spite of the fact that many people still somehow have the notion that the Magna Carta is the foundation upon which our entire legal system is built and indeed is part of the edifice which makes Britain distinct from other countries, very few realise that it has over the years been more or less abolished and no longer has any legal standing. All but three of the original sixty three clauses have been crossed out and two of those are of no interest to most people.
The original Magna Carta was issued in June 1215 and revised five times before the end of the thirteenth century. By that time, it had been reduced to just thirty seven clauses. In that truncated form, it remained as the law of the land until 1829, when George IV agreed to repeal clause 26. Another fifteen clauses were removed under the provisions of the Statute Law Revision Act of 1863 and also the Statute Law (Ireland) Revision Act of 1872. By the end of Victoria’s reign in in 1901, another six clauses had been removed.
The last revision of the Magna Carta took place in 1969, when six more clauses were lopped off; leaving just three remaining clauses. All this might come as a bit of shock to those who have the idea that this venerable document is somehow sacrosanct and still of enormous importance to the true-born citizen of Britain! The three clauses which remain on the Statute Book are as follows;
Clause 1: First, we have granted to God, and by this our present charter
have confirmed, for Us and Our heirs for ever, that the Church of England
shall be free, and shall have all her whole rights and liberties inviolable. We
have granted also, and given to all the free men of our realm, for Us and
Our heirs for ever, these liberties under-written, to have and to hold to
them and their heirs, of Us and Our heirs for ever.
Clause 13: The City of London shall have all the old liberties and customs.
Furthermore We will and grant, that all other cities, boroughs, towns, and
the barons of the five ports, and all other ports, shall have all their liberties
and free customs.
Clause 39: No free man shall be taken or imprisoned, or be disseised of his
Freehold, or liberties, or free customs, or be outlawed, or exiled, or any
otherwise destroyed; nor will We not pass upon him, nor condemn him,
except by lawful judgement of his peers, or by the law of the land. We will
sell to no man, we will not deny or defer to any man either justice or right.
These paragraphs then, are all that is left of the famous charter and the only parts which have been held to have the remotest importance for Britain today; that the Church of England shall be protected, the City of London held in special regard and, almost as an afterthought, that nobody must be sent to prison unless he has been properly convicted of a crime.
We will see shortly just how much this impressive safeguard actually means in practice, but first we must see how the Magna Carta, which really was only of importance to certain sections of society in medieval England, should have come to have so much significance attached to it today. It is still referred to when debates turn to freedom and protection from wrongful imprisonment. In 2008, when the British government succeeded in increasing the length of time that terrorist suspects could be held from twenty eight to forty two days, the then Shadow Home Secretary David Davies resigned in protest. He mentioned the Magna Carta as being somehow germane to the issue, claiming that it was a document which, ‘guarantees the fundamental element of British freedom, habeas corpus.’ It came as no surprise that somebody would raise Magna Carta at such a time, even though habeas corpus did not actually become part of the statute law of England until the passing of the Habeus Corpus Act of 1679; four and a half centuries after Magna Carta. Invoking this obscure piece of legislation though would not have struck nearly so much a chord as did the mention of Magna Carta!
The Magna Carta as we know it today is largely the creation of the late Elizabethan and Jacobean lawyer, Sir Edward Coke; widely considered to have been the greatest jurist of his age. Coke’s career was a glittering one; Solicitor General, Speaker of the House of Commons, Attorney General and author of a seminal work on English law. As Attorney General, Coke led the prosecution of the Earl of Essex for his abortive attempt to depose Elizabeth I and also that of Sir Walter Raleigh and then the Gunpowder Plot conspirators. Following these celebrated cases, he was knighted and then made Chief Justice of the Common Pleas. It is for his writing on the interpretation of the law that Coke is known today, in particular Institutes of the Lawes of England; a four volume work, three volumes of which were published posthumously.
Sir Edward’s analysis of the Magna Carta is magnificent and he draws out far more from the raw material of those sixty three clauses than one would ever guess possible. Where the ordinary person sees references to fish weirs, the crusades and the sisters of King Alexander of Scotland, Sir Edward Coke was able to find an exposition of the principles of English law dating back to the time before the Norman Conquest of 1066. As he put it, the charter was full of ‘great weightinesse and weightie greatness’. Anybody wishing to understand the fundamental principles of English law was advised to sift through the Magna Carta very carefully to see what was to be found there. It is Coke’s interpretation of the charter that most of us know about now, rather than the rather dull and uninspiring text to which King John affixed his seal in 1215.
By all of this, it will be seen that the British attachment to what they fondly suppose to be the origin of their values has little to do with the events at Runnymede eight hundred years ago and more to do with a complex and debatable analysis by an early seventeenth century jurist. Perhaps the most interesting point about it all is that even the remaining clauses of the Magna Carta promise us precisely nothing at all and will be overruled by any British government which feels in the mood for doing such a thing. In short, it guarantees nothing at all and is of no practical significance; binding the government to nothing at all. As soon as the concept of habeas corpus becomes inconvenient or clashes with the urgent needs of the moment; any British government will drop it like a hot potato. Only a very few instances are needed to show the truth of this assertion. Three from the twentieth century should be sufficient to make the point.
In 1914, following the outbreak of war with Germany, the Defence of the Realm Act was passed. This made provision for the arrest and imprisonment of anybody living in the United Kingdom who had been born in Germany. Thousands of men were detained and held in often poor conditions behind barbed wire in what were openly called at the time ‘concentration camps’. One at Camberley in Surrey alone held over eight thousand prisoners. These men had no recourse to law and some were held for over four years.
During the Second World War, an even tougher line was taken by the government of the time. In August 1939, before war had even been declared, Parliament was recalled from its summer recess in order to pass the Emergency Powers (Defence) Act. A notorious provision of this act was 18B, which gave the authorities power to lock up anybody they wanted to, whether British or any other nationality, for as long as they wished. Habeas corpus was suspended without a second thought. Sir Oswald Moseley, the leader of the British Union of Fascists was perhaps the most famous victim of this legislation, but there were many others; some of them quite prominent men and women. One notable example of the use of this Draconian act was the arrest and detention for three years of 70 year-old Admiral Sir Barry Domville; who had been unwise enough to express sympathy for Germany before the start of the war.
Magna Carta, or rather the idea of the charter, is still enormously popular. Under the Counter-terrorism and Security Act 2015, a duty is laid upon those working in schools and colleges to prevent young people from being drawn into terrorism. One of the ways that this is to be done is by the promotion of ‘British Values’; those of democracy, individual freedom and the rule of law. Inevitably, the Magna Carta is brought out and exhibited as summing up and symbolising all these British values. Whether discussion in the classroom or lecture theatre turns to voting, obeying the law or freedom of speech; Magna Carta is presented as the font of it all.
It is unlikely at this late stage that Magna Carta will ever be seen in its proper context, which is a shame. As an historical curiosity, shedding light upon the nature of medieval England, it is of great interest. As a guarantor of our ancient rights though, it is wholly irrelevant.
Excellent and fascinating old bean. Thank you.
Brilliant! David Starkey's book on Magna Carta is likewise informative and illuminatng.