The 800th Anniversary of the signing of the Magna Carta

Abstract

This short paper provides the background to the signing of the Magna Carta; it provides a summary of the essential importance of the Charter to the history of liberty and it provides a short account of the often understated contribution made by England to, and the very ‘Englishness’ of, parliamentary democracy. It concludes by suggesting that this carefully constructed and often bloody road to civil and political freedom is deteriorating rapidly through neglect and our own contemporary apathy.

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On this, to the day, Monday 15 June 1215, one of the most important documents in political history was signed at Runnymede near Windsor, England - the Magna Carta [L. Great Charter].

King John was enthroned consequent to the death of his brother, the popular King Richard the Lion-Hearted, in 1199. John’s reign was, by direct contrast extremely unpopular and his reign disastrous. Having lost the Duchy of Normandy to the French king he taxed the English nobility heavily to pay for his foreign misadventures. He was at odds with the Pope and sold church offices to build up his empty royal coffers. Subsequent to the disastrous campaign and English defeat to regain Normandy in 1214, the Archbishop of Canterbury, Stephen Langton, called upon the disgruntled barons to demand a charter of liberties from the king.

The result has been enshrined in history as the Magna Carta.

 Comprising some 63 articles, this Charter signed by King John, formally granted his Barons, the church, merchants and freemen of England a set of political and judicial rights and guarantees that placed the next surface on England’s bloody but inexorable road to political liberty. Those interested in the detail of the Charter are commended to read the full detail in its English translation at the British Library online.[1]

 In essence, the Charter, one of the most important legal documents in history, enshrines the ‘concepts’ of government accountability and the protection of individual rights. At its core lay the principle that regal authority should be limited by – and separated from – the will of the people. In the immediate context of the early 1200s, that meant that taxes could not be raised without the “general consent of the realm” – and for realm read barons and the church. Although it was as much observed in the breach, it served as a guiding principle and a significant concession by the Crown.

 It also enshrined the idea that individuals were entitled to be treated in accordance with the laws of the land and would, when accused of wrongdoing, be judged by their equals. Admittedly this clause [39] affected only those limited number of citizens who were “free men” – notwithstanding it confirmed the notion of the Rule of Law and the applicability of trial by jury.

 Much has been written about the Charter and much mythology has grown up around it. It has been used to justify innumerable rebellions, including the American War of Independence, and it has been the subject of much misunderstanding because most people who proclaim it have never actually read it.

 As it was, in subsequent British history until the Civil War, it was as much observed in the breach as in its application. But it served as both an emotive and practical safeguard against monarchical tyranny.

 Its immediate effect was to consolidate the role of the nobility as an oligarchy and advisers to the monarch. But it granted certain rights and authority to the Church, selected towns, merchants and ‘freemen’ thereby instituting further societal layers in feudal England which ultimately enabled English political society to develop.

 I have said in my book, The Smiling Autarch that:

"It is unfashionable today to laud the contribution made by the English speaking peoples, particularly to England, to the story of international political freedom.

It is easy to forget that once proud culture of political freedom and engagement forged a worldview of freedom, and that the word ‘Westminster’ became the byword for representative and sound government.

The ‘idea’ of Parliament as a practical check on the powers of the king or executive is not a fanciful product of political theory – it has been a peculiar British contribution to the story of liberty. It is the proud and often bloody story of a nation’s struggle for political freedoms. Indeed, whilst the ancient cultures of the east were founded on, and suffered under the predations of absolutism, England’s politics were rooted in the Saxon love of liberty.

Although much is made of the American War of Independence and the French Revolution as the flowering of democracy, it is well to remember that the ideals and high-minded precepts contained therein had been articulated long before by English philosophers and writers and that English blood had already been amply shed in the name of political liberty. Indeed, it is ironical that the very principles espoused by the rebellious colonies were those bequeathed to them by the Crown.   

It is difficult to date the origin of ‘the crown in meeting’ but it is certainly safe to say that it is a continuum that has run through the fabric of British history for thirteen hundred years.

Dispossessing the original Britons and Celts, the Germanic Angles, Saxons and Jutes brought with them their Teutonic traditions of village and governance. Therefrom emerged a discernible political structure in the shifting fortunes of Anglo Saxon England. The basic form of administration was the village ‘moot’ or meeting; groups of towns met at ‘hundred-moots’ and certain numbers of these constituted a ‘shire’. The shire-moot was presided over by the ‘alderman’ [older men] and the ‘shire-reeve’ and in Christian times, a Bishop. Collectively these shires constituted the kingdom governed by the ‘Great Moot’ or witenagemote [meeting of wise men] presided over by the king. This body comprised his thegns, ealdormen, bishops and abbots, and had the dual responsibility for providing advice to the king and acting as a supreme court in both criminal and civil cases.

The Norman Conquest truly unified England. William provided what previous English kings could not; order, and he rendered it safe from the predations of northern invaders from Denmark. He codified the law and established a structure of governance, be it monarchical and absolute. The Normans established the King’s Curia (L. senate, meetinghouse) or Curia Regis, as the legislative body as well as a court to hear matters of land and property.

The great Whig historian Lord Macaulay however described the Norman invasion in apocalyptic terms:

“The subjugation of a nation by a nation has seldom, even in Asia, been more complete. … During the century and a half which followed the Conquest, there is, to speak strictly, no English history.” [2]

He overstated his case. Indeed, for a period, the Anglo-Saxons lost their political freedoms as Norman law subsumed the village moots. But Norman occupation was hotly contested by Anglo-Saxon nationalists as evidenced by a number of uprisings and battles. One of the most brutal incidents was the murder of the Norman Bishop of Durham outside his cathedral by an angry English mob. The story of Hereward the Wake, the great hero and patriot of the English fuelled popular imagination.

A century later the cultural antagonisms of the Norman Conquest had diminished to the point when the idea of absolutism in government came under question once again. King John’s forced acquiescence to the demands of the Magna Carta in 1215 established the fundamental principle of human rights against the excesses of executive power.

Thereafter followed a number of significant steps in the evolution of Parliament. 

The term ‘Parliamentum’ – broadly translated as ‘parley’ or ‘discussion’ originated in the reign of Henry III (1216-1272). Simon de Montfort, the victor of the Battle of Lewes and captor of Henry III, called the first real Parliament in 1265. In seeking to strengthen his position vis-a-vis the Royalist party, Montfort summonsed Parliament which for the first time included representatives from the towns. Montfort was killed later in the year at the battle of Evesham but the idea that the law was above the king stuck. Despite the restoration of Henry III, the old despotism had suffered a fatal blow.

In 1295 Henry’s successor, Edward I, summonsed what has been termed the ‘Model Parliament’ – so named because its political make-up was more representative than many that followed – included representatives of cities and boroughs. Although it was convened to finance Edward’s wars against the Welsh and Scots, it established the precedent of parliamentary authority and that no king was above the law.

The distinguished English historian G.M. Trevelyan O.M. described Montfort’s contribution to English democracy in glowing phrase:

“Simon de Montfort, Earl of Leicester, was of French extraction and education, but in an age when the English upper class talked French in its familiar intercourse, that did not prevent him from becoming an Englishman at heart. ... The party that Simon led in his last two years was indeed remarkably like the Cromwellian both in its strength and its weakness. Democrats before the age of democracy, they were in an impossible position, and could not themselves have effected any settlement. But their action dictated the future, at least negatively. Lewes, won like Naseby[3] with prayer, psalm-singing and cold steel, was, like Naseby, a fact that could never be obliterated. The restoration of Henry III was no more a return to the old despotism than was the restoration of Charles II.”[4] 

Since the Norman Conquest there have been no less than six civil wars in British history about its constitutional arrangements. Further to these have been several wars between competing claimants to the throne; and, consequent to a deep sense of injustice, at least one popular political insurrection (1381), innumerable outbursts of political violence and several violent national demonstrations and marches, including the C19th radical movement known as the Chartists.

In addition, during the course of the seventeenth to nineteenth centuries Britain gave the world many of its greatest political philosophers and litterateurs of which Thomas Hobbs; John Locke, John Stuart Mill, Adam Smith, Edmund Burke, George Berkeley, David Hume, Charles Darwin, Charles Dickens and Samuel Johnson constitute only a part. It was the sum total of these minds that constituted the peculiar liberal tradition for which Britain could be rightfully proud.

If indeed there is a continuum in British history it is the demand for political liberty.

For those countries fortunate in having inherited or adopted the so ascribed Westminster system of government, Parliament is the supreme legislature. The Head of State, or symbol of the legitimising of authority and political power may well be a sovereign, as in the case of Malaysia; an appointed president as being the case in India; or a governor general as in the case of Canada and Australia. These heads of state do not exercise daily political power, this rests with the elected prime minister and cabinet working through parliament and whose legislation, having passed that house is given royal or presidential, that is, executive assent.

It is a complex system that has worked well, in some cases for a considerable period. It is now under question.[5]"

It is a complex system. A system that requires ethical governance, mutual trust between those governed and those governing. It requires an impartial judiciary that knows its limitations and accepts that the highest court in the land is the people.

 Sadly, the ethical health of our society is not what it should be. That is the subject of my book. Suffice it here to say, that those that govern us are held in complete suspicion, with good reason. No longer is there the notion of ‘political service’ but self-interest at worst or overt political agendas at best. The judiciary has assumed powers well beyond its charter to the extent our justice system has degenerated into a legal system and the distinction between politics and justice is totally indistinct. And of course, those being governed are not free of blame. Being so used to corruption at every level of life, they consider the political classes with contempt. This leads to a natural expectation of corruption which, after a while transmogrifies into political apathy.  And so we continue to let our politicians play at politics instead of governing us with sagacity and ethical decency.

Professor Jeffrey Goldsworthy, Professor of Law at Monash University, published a paper on this theme in a recent edition of Quadrant. In his erudite and telling paper he made the point that: 

"Genuine and lasting respect for one another’s rights cannot be imposed by judicial fiat; it can only emerge from the dialogue and compromise that characterise politics in a democracy. [6]"

This will be the subject of further comment in this website.

 Pro tem let us rejoice in a birthday that involves us all. Whilst the Magna Carta is hardly a template for liberal democracy, it is one of the foundation documents of our civil freedoms. Today is a red letter day – and we can thank the Church and the disgruntled knights, unhappy with King John’s arbitrary and unhappy reign, for it.

 Four copies of the original Charter exist today: one in Lincoln Cathedral, one in Salisbury Cathedral, and two in the British Museum.

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[1] http://www.bl.uk/magna-carta/articles/magna-carta-english-translation

[2] Macaulay, T.B. Lord. History of England. Herron Books. London. 1967. Vol. 1. p.10.

[3] A decisive battle of the English civil war (1645) where the Royalists were defeated by the Parliamentary army under Cromwell and Fairfax.

[4] Trevelyan, G.M. O.M. History of England. Longmans. London. 1966. pp.175-6

[5] Coe, J. The Smiling Autarch. writersandeBooks. Sydney.2013. pp.39-43

[6] Goldsworth,  J. ‘Losing Faith in Democracy.’ Quadrant. May 2005.

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