Making claims

6 June 2015
One of four surviving copies of the 1215 Magna Carta. This copy is one of two held at the British Library. It came from the collection of Sir Robert Cotton, who died in 1631. In 1731, a fire at Ashburnam House in Westminster, where his library was then housed, destroyed or damaged many of the rare manuscripts, which is why this copy is burnt.

One of four surviving copies of the 1215 Magna Carta, held at the British Library.

The long history of the Magna Carta turns out to have been a lucky accident, or at least that’s my reading of it from the 800th anniversary exhibition at the British Library. King John signed it to placate a powerful group of barons who had taken up arms against the king in response to his heavy taxation and arbitrary behaviour, and had captured London. Having signed, John immediately cried foul, telling his protector, Pope Innocent III, that he had signed under duress (shades of Charles I, who has his own part in this story.) Innocent promptly issued a Papal Bull annulling the Charter.

Popes being Popes in the Middle Ages, that should have finished it off, except that John died a year later, leaving the 9-year old Henry III on the throne and his advisers needing to appease the barons, with Britain still in a state of civil war. The advisers reissued the Charter in both 1216 and 1217, the second time as part of the peace treaty that ended the civil war.

But the real breakthrough came in 1225, when Henry, no longer a minor, issued the fourth version of the Magna Carta in exchange for the grant of taxes, which also created a connection between representation and taxation.Importantly, he also stated that he did this with his “spontaneous and free will”, and affixed the Royal Seal.

A significant legal document

John, for his part, was clearly as evil as he comes across in the Robin Hood stories: he fought a series of unsuccessful wars to try to hold on to the territories of the British crown in France, and taxed ruthlessly to pay for these wars. A generation after his death, one chronicler recorded, “Foul as it is, hell itself is defiled by the fouler presence of John.”

Once Henry had issued the Charter, it became a significant legal document, the more so after his son Edward I issued it again in 1297, at which point it also became part of English statute law. In Essex in 1300, peasants (who were not “free men” and therefore not included in the Magna Carta) nonetheless appealed to it during a dispute with their lord’s bailiffs. Wat Tyler, the leader of the Peasants’ Revolt in 1381, by some accounts said that he wanted a “new Magna Carta” that included the peasants. But by the start of the 16th century, it was largely a legal document: one of the first legal texts to be printed, to be sure, initially in Latin and legal French, and later in English. Lawyers were expected to know it, but it remained, broadly, a technical document.

Strengthening the case

And that’s how it might have stayed, but for Charles I and his fight with the English Parliament in the first half of the 17th century. The legal scholar Edward Coke, a Parliamentarian, needed to strengthen the legal basis of Parliament’s case for its independence against the King, and in effect wrote a set of treatises on Magna Carta to do this. John Cooke, the lawyer who created the case against Charles at his trial for treason (which in an age of the ‘divine right of kings’ required some innovative jurisprudence) also drew on Magna Carta as justification.

One of the interesting features, in fact, of the British Library exhibition, which runs until 1st September, is the sense of later generations – later eras, even – making claims on the Magna Carta. Apart from the English revolutionaries, the Americans did much the same thing in their revolutionary documents, influenced particularly by Thomas Jefferson. Nelson Mandela is also quoted in the exhibition (this is the revolutionary Mandela, on trial for his life, not the inclusive global symbol he became in the 1980s and 1990s.)

A curious transatlantic history

In fact there’s a curious transatlantic history about the document. The British Government tried to give one of the original 13th century manuscripts to the USA in the early stages of World War II, as part of the diplomatic offensive to persuade the Americans to join the war, but this idea failed when it doescovered it didn’t actually own any of them. And after the war there was a suggestion that Britain and the United States should share a “Magna Carta” day on June 15th, the anniversary of the signing. A British civil servant sent a classic “Sir Humphrey” letter rubbishing the idea, politely:

“There is a possibility that the celebration of Magna Carta Day in a Colonial Empire might be used for purposes very different from those which we desire. In some Colonies where ill-disposed politicians are on the lookout for opportunities to misrepresent our good intentions, its celebration might cause embarrassment and in general there is a danger that the Colonial peoples might might be led into uncritical enthusiasm for a document which they had not read but which they presumed to contain guarantees of every so-called ‘right’ they might be interested at the moment in claiming.”

‘Making the blood race’

There is also some disdainful historiography in the letter, which is true as far as it goes. But as the former British Law Lord, Lord Bingham, once wrote, “the terms of Chapters 39 and 40 have the power to make the blood race.”

Chapter 39 says that “No free man shall be seized or imprisoned or stripped of his rights or possessions …except by the lawful judgment of his equals or the law of the land.” And 40, “To no one will we sell, to no one deny or delay right or justice.”

Bingham observes that although the definition of free men was constrained, it nonetheless “to an exceptional degree assumed a legal parity among all free men.” Nor was it thrown together quickly to try to cobble a peace with the Barons: similar ideas were seen in Henry’s Charter of Liberties in 1100. As Sir James Holt observed, “Laymen had been assuming, discussing, and applying the principles of Magna Cartalong before 1215.” And, of course, it also represented, in Bingham’s phase, “a clear rejection of unbridled unaccountable royal power,” which represented a huge inetellectual step in the 13th century, “the rule of law in embryo.”

I’ve written here before about the sustaining power of ideas, but curiously, the civil servant’s letter, busy ensuring that something didn’t happen, more than anything else in the exhibition seemed to me to be indicative of the power of the idea of Magna Carta. 700 years later, in a very different time, and in very different cultures, it had the power still to resonate.

“Magna Carta: Law, Liberty, Legacy” is at the British Library in Londoin until 1st September. If you can’t make it to the exhibition, the British Library has a terrific online resource of images and articles. And the Magna Carta Project is also worth an online visit.

 

 

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