George Cony , a London merchant, had once been a friend of Oliver Cromwell. But when the Lord Protector slapped a tax on silk imports without the consent of Parliament, Mr Cony protested that this was the sort of arbitrary behaviour for which Cromwell had lambasted the late king, and demanded that the unjust tax be repaid to him. Cromwell first tried to browbeat Cony into submission, then threw him in prison. Cony’s lawyer, the eminent Sir John Maynard, demanded that he be set free, and the judges in the case were minded to release him, invoking the provisions of Magna Carta against imprisonment without trial. The Great Oliver then committed Maynard to the Tower, summoned the judges and told them that ‘their Magna Farta should not control his actions which he knew were for the safety of the Commonwealth. He asked them who made them judges; whether they had any authority to sit there but what he gave them?’ Nor did Cromwell think any better of the Petition of Right, the reprise of Magna Carta designed by Sir Edward Coke to recall Charles I to his constitutional duty: according to Coke’s grandson Roger, he called it ‘the Petition of Shite’.
I can find scant mention of this menacing language and conduct in those biographies of Cromwell which have a soft spot for God’s Englishman. Christopher Hill skips lightly over it. John Buchan refers to it as ‘a farmyard jape’ and excuses it on the grounds that ‘this thing touched the heart of his authority and he could permit no weakening.’ Others suggest that the story is probably royalist propaganda (it occurs in Clarendon’s History of the Rebellion). This seems implausible, for in a trial after the Restoration, when the defence ventured to quote the clause in Magna Carta that ‘no free man shall be imprisoned except by the judgment of his peers or the law of the land,’ Lord Chief Justice Kelynge’s only answer was ‘to repeat with a loud voice Cromwell’s coarse rhyme “MAGNA CHARTA, MAGNA FARTA!!”’ Cromwell’s jape was obviously a byword. And for repeating it, Kelynge, a candidate for worst lord chief justice ever, was hauled before the bar of the House of Commons, where he made a pitiful apology; he was a broken man ever after. Pepys kept up with the proceedings: ‘I did also see their votes against my Lord Chiefe Justice Keeling, that his proceedings were illegal and that he was a contemner of Magna Charta, the great preserver of our lives, freedoms and properties – and an introduction to arbitrary government – which is very high language, and of the same sound with that in the year 1640.’
What is so striking, not for the first or last time in its 800-year history, is the ferocity of the hatred provoked by the Great Charter among its opponents, and the instinctive cherishing of it by its supporters. Nothing could have exceeded the fury of King John himself at Runnymede. Matthew Paris describes him as ‘gnashing his teeth, scowling with his eyes, and seizing sticks from the trees, began to gnaw them and after gnawing them to break them, and with increased extraordinary gestures to show the grief and rage he felt’. Even allowing for chronicler’s licence, we can believe that John felt every bit as humiliated by being forced to give up untrammelled power in England as he had by the loss of most of his French empire to Philip Augustus at the Battle of Bouvines the year before.
The meadow had been selected by the barons because witenagemots had supposedly met there since King Alfred’s day – ‘Runny’ comes from the same root as ‘rune’ or ‘secret’. The drama of the proceedings zings off the pages of David Carpenter’s magisterial new study. What Carpenter does better than his rivals or predecessors is to make clear the continuing intensity of events after Runnymede and the hectic pace of them. Within days of its sealing, engrossments of the Charter were sent to a dozen bishops in their dioceses as being the most reliable custodians and distributors (Clause 1 guaranteed the freedom of the English Church). Simultaneously, the 25 barons who were to oversee the Charter under the crucial Clause 61, the ‘security clause’, sent letters to all the county sheriffs, instructing them to take an oath of allegiance to the Charter and to elect 12 knights in each county to inquire into ‘evil customs’ needing reform. A whole parallel executive was being set up, quite independent of the king, and arrogating the power to punish him for any breach by heavy fines and confiscations. This was something unique and intolerable. Within ten days of the sealing, no fewer than fifty estates that John was said to have seized unjustly were returned to their previous owners, a dozen being among the 25 barons – the most barefaced example of self-interest in the proceedings. When the king met the barons at Oxford a month later, they treated him with contempt. John was in bed, unable to walk because of gout. The barons refused to come to him in his chamber. When he was carried into them on a litter, they refused to stand up.
John was equally quick to respond. Immediately after the Oxford humiliation, he wrote to Pope Innocent asking him to quash the Charter on the ground that it had been extorted by force. By riding flat out, forty or fifty miles a day, messengers reached Rome in time for the pope to dispatch his papal bull dated 24 August. By late August or early September, the barons in turn had decided on the extraordinary step of electing Prince Louis of France, the eldest son of Philip Augustus, as king in John’s place. What followed was one of the most bizarre forgotten episodes in English history. Louis crossed the Channel, landed at Thanet on 21 May 1216 and proceeded to London, then securely in the hands of the rebels, where he was proclaimed king, though not crowned. This invasion, or calling-in if you prefer, was just as much intended as a remedy against arbitrary rule as the invitation to William of Orange and the Glorious Revolution (like William, Louis had a claim to the English throne through his wife, Blanche, granddaughter of Henry II). Yet it has been erased from the national memory. Louis’s ‘reign’ might well have lasted longer if John had not conveniently died during the renewed civil war that followed, making a fresh start possible under his nine-year-old son, Henry III. As a poet of the time put it: ‘The candle of the child called back the stars which had been scared by the father’s thunder.’
It was in Henry’s name that the Charter was renewed in 1216, in 1217 and in 1225, the definitive reissue, clauses from which remain on the statute book. One of the authors of Magna Carta Uncovered, Anthony Arlidge QC, once invoked Magna Carta when pleading a case before his co-author, Mr Justice (later Lord Chief Justice) Judge, though he lost. As I write, lawyers are planning to invoke Magna Carta in a suit against the lord chancellor, Chris Grayling, arguing that his new court fees amount to selling justice, forbidden under Clause 40.
It is an epic tale, yet one can’t help noticing a hint of apology in much of the recent celebrating. Yes, we are told, the Charter has a venerable history, but it was quashed within weeks of being sealed. Its extreme demands provoked civil war rather than sealing peace. In its own time it was a failure. Besides, it was all a long time ago, and its provisions have ceased to be directly relevant (only three and a half clauses are still part of the law). What have we to do with tallage, or scutage or fish weirs on the Medway? The barons were just as greedy and unscrupulous as the king. Suspicion of the Charter was especially pronounced at the end of the 19th century, when it was portrayed as a stumbling block rather than a landmark in the development of the English constitution – ‘an ecclesiastical and aristocratic reaction against the growth of royal power’ which retarded the growth of the modern state. Besides, the pope had every reason to quash the Charter, for it was indeed extracted by force.
In any case, John himself had done much to modernise royal government, and people, high and low, were ready, even eager, to take advantage of the new royal courts. J.C. Holt, in his classic study of the Charter published at the time of the 750th anniversary and now reissued, is as pro-John as it is possible for a sane historian to be, and never misses an opportunity to point out where John’s arguments had genuine merit and how relieved most people were to fall into line behind the boy king and accept the watered-down Charter of 1225, which didn’t contain a pernicious security clause.
Magna Carta did live on, its critics have always conceded, but only by being misunderstood and romanticised. It is the myth rather than the actual text that can be said to be the foundation of liberty and the rule of law in the English-speaking world. To claim that the document has anything to do with democracy or even human rights is simply bad history. It belongs in the dustbin along with the legend of the Norman yoke being strapped on honest Anglo-Saxon necks. As early as the 17th century, scornful scholars were cutting Magna Carta down to size. King John’s civil wars could not help reminding them of their own terrible disorders. The thing was a warning rather than a beacon. To fossick about in old charters for useable precedents, as Sir Edward Coke did, was deluded antiquarianism. Hobbes’s Philosopher says: ‘Truly, I never read weaker reasoning in any author of the law of England than in Sir Edward Coke’s Institutes how well so ever he could plead.’ The royalist historian-physician Robert Brady remarks sourly that Coke ‘hath a fine fetch to play off the Great Charter and interpret it by his Modern-Law, that was not then known or heard of’.
Such scepticism still appeals to our own knowing cast of mind. All the same, a closer examination of the Charter’s text, and of its background and subsequent history, may make us think again. For one thing, it is not true that the Charter immediately declined into a bogus shibboleth, more often praised than consulted. Successive English kings either reissued it or declared allegiance to it. Large portions of the Henry III text remained law well into the 19th century. Nine clauses survived the Victorian tidying up, until Roy Jenkins in 1965 set up the Law Commission, which carried out a further winnowing. Even today we still have Clause 40 about not selling, denying or delaying justice, and Clause 39, that no free man is to be imprisoned or dispossessed ‘save by the lawful judgment of his peers or by the law of the land’.
Carpenter points out that if you rejig the order of the clauses a bit, you come up with a pretty comprehensive and logical statement of rights and duties within the 3550 words of the Charter. This impression comes over less clearly in Holt’s book, which concentrates in exhaustive detail on the property relations between the king and the barons. Holt makes little of the important clauses that set out rules for the commercial life of a kingdom in which population and incomes were rapidly growing: Clauses 41 and 42, for example, which guarantee free trade for merchants and free transit to and from England (echoes here of the Treaty of Rome); or Clause 35, which sets out to standardise weights and measures of wine, ale, corn and cloth (a project carried over into Article I of the constitution of the United States); or Clauses 12 and 13, which stipulate that taxes were not to be levied on the city of London ‘save by the common counsel of our kingdom’, and that London was to enjoy all its ancient liberties, as were all the numerous other towns that had gained royal charters over the previous century. Clause 33 too, the one about removing fish weirs from the Thames and the Medway and ‘through all England’, is often mentioned to show the Charter’s comical outmodedness, but in fact free navigation along the rivers was crucial for merchants moving their goods or themselves. Nicholas Vincent tells us that in modern times Clause 33 has been ingeniously deployed by indigenous peoples in North America and New Zealand to defend their rights. The unappealing clauses relating to debts owed to the Jews, Clauses 10 and 11, were also of economic importance. As long as the Christian prohibition on usury endured, the five thousand or so Jews in England were the banking system. The Charter attempted to strike a balance between the usual popular resentment against the bankers and the need of king and barons alike to keep credit flowing.
These commercial clauses were reinforced by others designed to clean up local government, such as Clauses 45 and 48, which promise not to appoint judges, constables, sheriffs or bailiffs ‘save from those who know the law of the kingdom and wish to observe it’. The 12 elected knights in each county were to pounce on malpractice by any of the king’s agents. In one of its occasional ad hominem moments, the Charter also prescribed that Philip Marc, the unpopular sheriff of Nottingham, be removed from office. Holt wrote a fascinating little book about Robin Hood, in which he argued that, though the surviving ballads date from the 1400s, ‘Robinhood’ as a sobriquet for violent robbers and outlaws can be found in court records much earlier, as far back as King John’s day. If the sheriff of the legend was based on a real sheriff, Holt fingers Marc as one of the likely candidates.
The most common modern objection is that all these reforms, however desirable some might be, were designed to benefit only a minority of the population, namely barons, knights and in some cases all freemen, but not women or villeins. This is essentially true, and not surprisingly so, since the Charter’s proclaimed purpose was to declare what the law was, not what it might come to be. Yet in many ways it does point forward rather than back. The rights of widows to marry whom they wished and to exercise control over their property were already expanding at the end of the 12th century – Holt calls this ‘one of the first great stages in the emancipation of women’ – and the Charter confirms this process. The guarantees of justice and taxation by consent extended only as far as freemen, but Carpenter points out that already the downward thrust is visible, for example in Clause 60, which commands that ‘all the men of our kingdom, both clerks and laymen’ are to pass the ‘aforesaid customs and liberties’ on to their own men. Fifty years later, knights and burgesses as well as barons were summoned to the Parliament of Simon de Montfort. The middle classes were on their way. And in the following century, ‘omnes’ really did begin to mean ‘omnes’. In the first of Edward III’s Six Statutes (1331), no man was to be jailed or dispossessed ‘against the form of the Great Charter and the law of the land’. The man no longer had to be free.
True, much of it was restating long familiar principles. As F.W. Maitland pointed out, ‘the Charter contains little that is absolutely new. It is restorative. John in these last years has been breaking the law; therefore the law must be defined and set in writing.’ The Charter is not claiming that a custom is good because it is ancient. Its antiquity simply reinforces its claim to be the law. How else could you prove this in a state that lacked a statute book and in which laws consisted mostly in writs and court judgments? Nor was it vacuous or sentimental to hark back to the pre-Conquest period. As Vincent remarks, Anglo-Saxon England (though not Norman France) was ‘a society already hard-wired with law’. Written codes of Anglo-Saxon law survived in numbers, perhaps from Ethelbert’s day, more reliably from Alfred’s; Arlidge and Judge report 22 different codes for different parts of England between 899 and 1022. Coronation oaths, notably that of Henry I, were another source of legal principle. The barons of 1215 might all have had Anglo-Norman names, but they could fairly claim to be doing something which had always been constitutive of lawfulness in England. Their choice of Runnymede was as symbolic as the king’s anointing in Westminster Abbey.
The energetic distribution of the Charters over the course of the 13th century shows how keenly English society took them to its heart. Carpenter records well over a hundred copies of the John and Henry III Charters made in the century after Runnymede, and more are still coming to light, often misfiled for centuries. In February Vincent gave an entertaining account in the TLS of finding an Edward I Charter of 1300 in the archives at Sandwich. Not the least interesting finds are those of preparatory documents for Runnymede, such as the ‘Unknown Charter’ and the ‘Articles of the Barons’. Scholars argue about precisely how these fit into the narrative. For our purposes, what they testify to is the zeal and attention to detail of the barons’ task force, and the no less formidable negotiating skills deployed on the king’s side.
We must discard the idea of John as a hopeless loser from the start – John Lackland, John Softsword. He was certainly a deeply unpleasant character, bad-tempered and vengeful, a cruel tease when in a good mood and a beast in a bad one. But he was incurably energetic and hard-working. He was the most itinerant of English kings, seldom resting in the same town for more than a week or two. In his thirst for revenue, he plagued northern England in a way that none of his predecessors had dreamed of. Roused after the relatively benign neglect of the absentee Richard Coeur de Lion, the northern barons were the most conspicuous in the rebellion. John raised huge sums for his doomed attempt to recover his lost empire, and in doing so provoked huge resentment. As Carpenter remarks, ‘had John been content with ruling England and dominating Britain and Ireland, there would have been no Charter.’
If the Charter had not contained those two or three clauses that the king could not swallow, he might perhaps have let it lie, hoping that the force of it would fade with time and that he could, little by little, resume his incursions. But Clauses 47, 52 and 61 were too much. They were an insult to his pride, his power and his pocket. The immediate deforesting of all land that had been afforested in his reign (Clause 47) did not mean cutting down trees (royal forests contained much arable land and were not only hunting preserves). It meant savage reductions in royal land and royal income and a return of huge tracts to the common law and the common people. The rich economy of the medieval woodland, so captivatingly described by the much mourned Oliver Rackham – its timber, its coppices, its charcoal, its rabbit warrens and pig-runs – would be lost to the king. Also lost under Clause 52 would be the lands and castles that the king was adjudged to have unjustly seized. Holt records quite a few cases in which the king, on one of his better days, himself restored such property to its previous owner. Now the verdict was to be given by the 25 barons under the fatal Clause 61.
This was the great provocation. No king then could have tolerated it, and few sovereigns since – whether kings, kings-in-parliament or elected presidents, certainly not Vladimir Putin – have tolerated such a rival power in the land. Pluralism is anathema to those who believe, like Hobbes in Leviathan, that it is a doctrine ‘plainly and directly against the essence of a Common-wealth … That the sovereign power may be divided. For what is it to divide the power of a Common-wealth, but to Dissolve it? For Powers divided mutually destroy each other.’ This doctrine did not die with the 17th century. I was taught at school that it was the glory of the British constitution that under it the powers were not really separate or divided. Montesquieu, though an admirable fellow, had misunderstood the whole thing, and the Founding Fathers had read too much Montesquieu. Now this was poor history, since the American colonists had taken Magna Carta with them and injected it into their own constitutions before Montesquieu was born. But certainly the difference between the British and the American view lingered on.
Arlidge and Judge and Vincent give fascinating accounts of the afterlife of the Great Charter: how it influenced the development of Parliament and the fierce debates of the 17th century, how large chunks of it were incorporated in the constitutions of the American colonies, how it has been quoted in the most unlikely places wherever liberty has been in danger. Both books are magnificently illustrated. The physical presence of the Charter is one of its most compelling attributes. Vincent gives an enjoyable account of the efforts of the Americans and the Australians to get hold of a genuine copy. Both books also trace the clear line of descent that leads to the entrenchment of habeas corpus and the principle of no taxation without representation. So does Dan Jones’s shorter treatment, in some ways the liveliest and most clear-eyed of the three. But none of them quite tackles the long-running constitutional cleavage, which is also part of the Charter’s legacy and which was already evident on day one at Runnymede. Does liberty depend on some deliberate fragmentation of power at the centre? Or is Hobbes right that a state can endure – and hence guarantee liberty to its citizens – only if power is concentrated, if the fist of government remains firmly clenched? Do you swear loyalty to a document or a person?
Bagehot, writing in 1867, was obsessed with the ‘weakness’ of the American division of power and plainly asserted that ‘the efficient secret of the English constitution may be described as the close union, the nearly complete fusion, of the executive and legislative powers.’ (He doesn’t even mention the judiciary.) For ‘Hobbes told us long ago, and everybody now understands that there must be a supreme authority, a conclusive power, in every state on every point somewhere.’ Had not the Americans just gone through a ghastly civil war because of having failed to grasp this simple truth?
The Hobbes-Bagehot view slumbered on unchallenged through the pages of Dicey and Jennings, and even got a fillip with the rise of the Labour Party, which in the view of Harold Laski had every right to act as ‘a battering ram’ in the furtherance of socialism, without fiddling about with parliamentary scrutiny. Only in the 1970s when the system didn’t appear to be working quite so well did Lord Hailsham suggest that Britain’s ‘elective dictatorship’ had its weaknesses – and he was out of office at the time. In the forty years since Hailsham’s 1976 Dimbleby Lecture, British politics has moved, sharply, unmistakably if not always consciously, back in the direction of Runnymede. Tony Blair had little interest in constitutional reform, Ted Heath not much more. Yet under them a new pluralism seeped into the governance of Britain. The edicts of the European Commission and the European Court were, as Lord Denning pointed out, an incoming tide which swept up every creek and inlet, and unlike other tides it showed no sign of receding. Later, the European Convention on Human Rights slid just as effortlessly into English and Scottish law.
At home, for a century or more, British judges had thought it their place to remain passive interpreters of statute, more like pussycats than ‘lions under the throne’, as Bacon had described them. Now the trickle of cases that had attracted judicial review became a flood. What Lord Chief Justice Hewart had called in 1929 ‘the new despotism’ of ministerial diktat began to look frayed at the edges. Civil servants framing legislation looked nervously at ‘the judge over your shoulder’, the phrase being taken as the title of a government handbook first published in 1987 (it has been regularly revised and is now known as JOYS for short). This new judicial activism was further embodied by the physical separation of the new Supreme Court from the House of Lords, and the removal of the powers of judicial patronage from the lord chancellor, whose office has dwindled into a low-rent Ministry of Justice. Meanwhile, the House of Lords began to take its powers of scrutiny far more seriously than it had throughout most of the 20th century and rebelled with an even greater insouciance as soon as the vast majority of the hereditary peers had been expelled from it. Even the select committees of the House of Commons assumed a greater self-confidence as soon as its chairmen began to be elected by their fellow MPs, not chosen by the whips. The acerbic Margaret Hodge and Andrew Tyrie have become national inquisitors, just like their counterparts in the US Congress.
Most unnerving of all for those who were quite happy with the old system was the inability of successive British governments to resist Scottish and, by extension, Welsh devolution. The rights of the Scottish king and the Welsh princes were, as it happened, recognised in Clauses 58 and 59 of the Great Charter, and they joined in the rebellion against John with brio. Eight centuries later, those gestures to the independent existence of the Celtic realms have taken solid – and unrepealable – shape. This breakneck dispersion of power has stirred considerable anxiety, resentment and heartfelt political opposition. Ukip tops the poll at the European elections. I suspect that Bad King John would be cheering Nigel Farage to the echo. Within a generation, the liberal elite has been wholly converted to a new constitutional pluralism. Belief in the untrammelled sovereignty of Parliament is now decidedly vieux jeu and nekulturny. Power is no longer clenched in Westminster and Whitehall. Magna Carta is back.
And still when Mob or Monarch lays
Too rude a hand on English ways,
The whisper wakes, the shudder plays,
Across the reeds at Runnymede.
Perhaps Kipling wasn’t such a reactionary after all.