Clear About The Facts

Dominic Selwood writes:

Magna Carta has an iconic status. To many, it is the foundation stone of English liberty – the guarantor of the freedoms we cherish, and the solemn legal basis for our centuries-old way of life.

It is unique in many ways, and widely appreciated as such. When an “original” 1297 Magna Carta was sold by Sotheby’s in New York in 2007, it went under the hammer for $21.3 million, a record price for a single sheet of vellum.

Appreciation of Magna Carta stretches beyond the British Isles.

In the United States, its hallowed phrases are cherished as a political inheritance from England that underpins the United States Constitution, as well as the charters of Massachusetts, Maryland, Connecticut, Rhode Island, Carolina, and Georgia (all published between 1629 and 1732).

Franklin D Roosevelt summed up a widely-held American view in his inaugural address of 1941, “The democratic aspiration is no mere recent phase in recent history … it was written in Magna Carta”.

Although England has no written constitution, most people assume that if we did, Magna Carta would be it. 

Its status is so unimpeachable that last century’s best-loved maverick judge, Lord Denning (Master of the Rolls, 1962–82), rhapsodised that it was “the foundation of the freedom of the individual against the arbitrary authority of the despot”

 And only this week, Prime Minister David Cameron noted that in it “King John had to accept his subjects were citizens – for the first time giving them rights, protections and security”.

He went on to encourage all schools to teach it when inculcating British (sic) values, as well as exhorting towns to commemorate it, and events to celebrate it.

But sadly, this widespread worship of Magna Carta as one of the planks of an English person’s rights has no basis in law or history.

In fact, almost everything commonly attributed to Magna Carta is wrong.

For a start, the document waved about at Runnymead on 15 June 1215 was not called Magna Carta, and King John did not sign it.

Despite widespread beliefs about the charter’s contents, it actually contained very little of significance.

The Articles of the Barons (as it was known) did not guarantee freedom to all true-born English people, subject the king to Parliament, enshrine the notion of trial by jury, guarantee freedom of speech, embed the concept of no taxation without representation, or anything else along these lines.

It was a largely dull document that dealt with dozens of administrative matters (inheritance laws, feudal obligations, church, land and forestry rights, fish weirs, prisoners, and so on).

It also had a number of clauses we would not want to highlight today, like “No one will be taken or imprisoned upon the appeal of a woman for the death of anyone except her husband” and punitive clauses against Jewish bankers.

Another fact not widely recognised is that the grateful recipients of the rights granted in the Articles of the Barons were not the long-suffering English people, but the aristocracy: John’s Anglo-Norman (i.e., French, but living over here) barons, who were largely responsible for most of the oppressing going on in the country.

The Articles of the Barons was, basically, an agreement between King John and his uppity aristocratic military henchmen. For example, one of the barons was none other than our good friend King John’s Sheriff of Nottingham, one of English folklore’s greatest villains.

So, the crowds at Runnymead were not grateful English serfs. The Articles of the Barons had nothing to say about them, and they remained the abused majority.

If that was not surprising enough given Magna Carta’s mythical status, it is perhaps even more odd that, as it turned out, the Runnymead agreement was only honoured by the barons and King John for a total of nine weeks, before being ignored and consigned to the midden heap.

So why do philosophers, politicians, judges and litigants across the English-speaking world, idolise Magna Carta as the fount of freedom?

Well, as usual, it’s down to people not being a hundred per cent clear about the facts.

Magna Carta would have been lost in relative obscurity, and known only to people who like to know such things, were it not for Parliamentarians in the 1600s fighting to find an answer to the absolutism of the Stuart monarchy.

They eventually located their prize in Magna Carta, which they exhumed from dusty legal digests, holding it aloft as a time-honoured cornerstone of the English constitution.

The only trouble was, they ignored all the little details that got in the way of their story, and simplified it into something that would suit their purposes.

For example, they squidged over four entirely separate versions of it into their one historic “Magna Carta”.

The document’s real history, unsurprisingly, was far more complex. And interesting.

Royal charters setting out good kingly practice were well over a century old. The practice had started with the Norman king, Henry I (1100–1135), fourth son of William the Conqueror.

When Henry seized the throne, he published a “coronation charter” in which he assured everyone he would observe the good laws and customs of King Edward the Confessor. Which of course he then singularly failed to do.

Henry published the charter because the country was still going through the upheaval of meshing together Anglo-Saxon and Norman law, so the declaration was designed to reassure his subjects that he was going to play by the rules.

He had not invented the idea. Over half a century before him, Edward the Confessor himself had sworn at his coronation to uphold the laws of King Cnut.

When Henry I died in 1135 and Stephen of Blois (a city south of Paris) usurped the throne, Stephen carried on the tradition and issued his own coronation charter.

His purpose was, predictably, to reassure his new subjects that even though he knew very little about England, he would govern properly and responsibly.

Of course, once the ink was dry, civil war and anarchy raged, and England burned for 20 years under him.

When Stephen in turn died and the throne passed to Henry II in 1154, England became an even more tense place.

Henry II was from Anjou, a region bordering Normandy and in fierce competition with it. So with Henry’s accession, the Anglo-Norman barons of England suddenly found themselves subject to the rule of their arch-rivals.

In line with tradition, Henry II also duly issued a coronation charter.

Predictably (this is the twelfth century), Henry II, and then his two sons, Richard I and John, all proved themselves cruel and venal.

Their family, the Plantagenets, became a byword for murder and sacrilege – think Henry and Thomas Becket, or John’s suspected murder of the 12-year-old Arthur (his rival for the throne that he was supposed to be looking after).

Henry II had been no angel, but John excelled at cruelty and the sexual predation of his nobles' wives and daughters. It was hardly a secret that his courtiers loathed him intensely.

And all the while, the Plantagenets taxed England as hard as they could.

They siphoned off money at an unprecedented level, and although Henry’s legal reforms may be seen as having laid the basis for our modern legal system, the reason he did it was to industrialise the collection of fines, which were set at increasingly ruinous levels.

Although Henry was bad, John was worse.

He lost the majority of the country’s lands in France, and squeezed every penny out of the Church and his barons that they had managed to recover after his older brother, Richard, had bled them dry in order to fund his grandstanding on crusade.

As a result, John was reviled by all. The monk Matthew Paris, writing at St Albans Abbey, summed up the feelings of many, “Black as is Hell, John’s presence there makes it blacker still”.

By early 1215, John’s barons were in full revolt against him. The final straw came on May 17, when they seized London.

Facing the loss of his capital and his precious treasury, John capitulated, and agreed to meet with leading churchmen and his barons at Windsor to stave off a full civil war.

There were several speedy rounds of negotiations, with Archbishop Stephen Langton of Canterbury shuttling between both camps.

The result was a final meeting at Runnymead on June 15. The document John sealed that day is lost. But in the following months his Royal Chancery sent out around 40 charters, one to each county, to be read aloud in the county courts.

The document was still not yet Magna Carta, but simply known as the Charter of Liberties. Four of these 1215 charters survive: at Salisbury cathedral, Lincoln cathedral, and two in the British Library.

Of the 40 documents John dispatched in 1215, there was, of course, no one single “original” from which the others were “copied”. Each was an identical original (called an engrossment), complete with John’s great seal.

The form of the Charter of Liberties was closely modelled on Henry I’s coronation charter. But John’s document had a very different purpose.

England was on the verge of a full-scale revolt. The negotiations leading to Runnymead were a last ditch attempt to stave off an outright civil war – the second in a century.

The document John sealed was not a gesture of his royal grace and munificence — it was a desperate peace treaty.

In the event, the Runnymead charter failed completely in its aim.

Its many solemn promises (replacement of named royal advisers, fate of specific hostages, repatriation of foreign fighters, and so on) were left unhonoured.

The charter was completely dead by September 1215, not three months after it had first been sealed. Both sides had unequivocally repudiated it. The barons then renounced their oaths of homage to John and declared all-out war on him.

Meanwhile, Pope Innocent III released John from his obligations under the charter on the basis that they were shameful, demeaning, and legally invalid because they had been exacted by force. The pope then excommunicated the rebels for good measure.

As the country was sucked into civil war again and the French occupied London, the Runnymead charter was forgotten – it was a failed accord, a botched attempt at finding middle ground. Yesterday’s news.

However, an unexpected turn of events would, extraordinarily, soon resurrect it.

John died in October of the following year, and his nine-year-old son, Henry III, found himself wearing the crown.

To prove that he would be a good king, his regents had him issue a coronation charter in 1216 at Bristol. Henry could not very well take as his precedent the skimpy coronation charters given by Henry I, Stephen, and Henry II, so he modelled his new one on John’s Runnymead charter.

But whereas John’s concessions had been forced from him under pain of war, Henry III’s was back to being a noble act of royal grace and good will.

During Henry III’s long reign (1216–72), his charter was reissued or reaffirmed many times – notably in 1216, 1217, 1225, 1237, 1246, and 1265.

The 1217 version is significant, because the sections relating to English forests were removed and issued separately as the Charter of the Forests.

To give a name to what was left, from around 1218 onwards, it began to be called the Great Charter (Magna Carta).

The last two times Magna Carta was issued were under Edward I, in 1297 and 1300.

Many of these post-1225 reissues were not because of current political tensions or the emergence of a muscular democracy, but rather to ensure that every county had access to a copy.

The reason they ceased being issued after 1300 is that from 1301 the king no longer communicated through the county courts, but instead charters were read in Parliament.

So, far from being one, hallowed document, Magna Carta was in fact issued on multiple occasions by three separate kings, leaving us today with 17 physical copies.

As anyone would expect, in the process of being reissued many times, Magna Carta was updated and amended, resulting in at least four distinct versions.

The biggest change came when Henry III issued it for the first time in 1216, as he removed the clauses that impinged most heavily on his royal power.

For example, one of the most shameful provisions John agreed to was the establishment of a panel of 25 barons who would scrutinise his decisions.

If they disagreed with his actions, they had the right, ultimately, to declare war on him.

Unsurprisingly, with the threat of civil war receding, Henry III felt no need to have his powers curbed in the same way, so simply undid the provisions and jettisoned those parts of the settlement he did not like.

This was no mere tinkering. By 1225, a mere 10 years after Runnymede, Magna Carta had lost a third of its words, and all of its teeth.

Not only was the charter butchered in the 1200s, but from 1828, what remained was dismembered so comprehensively that only three of its original clauses remain law today.

This junking of all but a few of its sentences tells us something uncomfortable about what monarchs and Parliament truly think of Magna Carta.

It should perhaps come as no surprise that the articles of Magna Carta that do remain on today’s statute book are all so vague and undefined that they are largely legally meaningless, and would take an unusual set of circumstances to be remotely useful in any modern litigation.

The three survivors (of the 1297 Magna Carta) are a sorry sight:

1. The English Church should be free from royal interference.

2. The customs and liberties of the city of London and other cities, boroughs, towns and ports are to be respected.

3. There is to be no imprisonment of a freeman without trial at the hands of his peers and there is to be no sale of justice.

As a bulwark of the English constitution, it does not add up to much.

Church freedom is clearly an anachronism. The days are long gone when churchmen like Thomas Becket fought to free their institution from royal interference.

In reality, the clause makes no sense in a post-Reformation world, where the monarch is the head of the English Church.

Unless we give the clause a strained new meaning, it is utterly obsolete, as is the provision regarding the freedoms and customs of cities.

The only relevant clause is the ban on imprisonment without judgment by one’s peers. It is something we would all applaud, but even here it is not quite what it seems.

It was not new. It only applied to “freemen” (so not the vast multitude of serfs bonded to their masters). And it was carefully qualified with the ability to junk it and apply instead the hopelessly vague “law of the land” – nicely leaving open the possibility for good old-fashioned direct state interference.

In any event, this provision has certainly never been observed: not before Magna Carta, at its time, or since. 

If this clause meant anything today, we would not have people languishing in prison on remand for months awaiting trial at which many are acquitted, nor would the special powers brought in post 9/11 be constitutional.

So where does that leave Magna Carta?

The act of writing something down or making it a law does not mean it is observed. To the contrary. Under dictatorships or tyrannies, laws frequently act as a propaganda shield to be enacted then ignored.

For instance, Stalin’s Constitution of 1936 contained specific detailed provisions guaranteeing numerous human rights.

Certainly, the record of English monarchs for centuries after Magna Carta shows no absence of summary executions ordered on a whim – as true of Henry VIII, Mary Tudor, and Elizabeth I as of the Henrys, John, or Edward.

Other strong but non-royal English rulers have also been happy to flout it. When it was shown to Oliver Cromwell, he dismissed it as “Magna Farta”.

The record shows that, for most absolute rulers of England, Magna Carta was – like Parliament itself – useful window dressing, but rarely something they took seriously.

The real question surrounding our fetishisation of Magna Carta is: why, if it is so sacrosanct, have we hacked it down to three largely meaningless clauses?

If it really is “the foundation of all our laws and liberties” (Our Island Story, cited by David Cameron), why have we largely scrapped it?

The reality is that Magna Carta was never intended as a key constitutional document – it was quite explicitly a peace treaty cobbled together at a time when the country was being sucked into civil war.

No more.

No less.

But, like Alfred, Arthur, Robin Hood, Lady Godiva, and so much of our medieval past, it has been taken up and mythologised beyond recognition.