The Legacy of Magna Carta
Mark originally wrote this article for Inside Time, the national newspaper for prisoners and criminal justice practitioners in England and Wales.
This June marks the 800th anniversary of the Magna Carta, much lauded as the foundation stone of our British legal system. It was the one of the first documents to hold our leaders accountable for their actions and place limitations upon their power. Yet, it wasn’t the instant success many assume it to have been. With the ink barely dry, the Magna Carta was annulled by order of Pope Innocent III, sparking a civil war.
At the time, it was seen as an unprecedented incursion upon the sovereignty of the monarch. In medieval England, the throne was the seat of all power. Appointed by divine right, the King was accountable to no-one but God. The idea that he should answer to his subjects was simply unheard of.
The King divided his land up into fiefdoms (a precursor to the counties we know today), granting it to his barons in exchange for their loyalty (‘fealty’) and military service. Barons in turn appointed knights to protect their fief. Despite the King’s absolute power, this was at its heart a contractual arrangement. A good king needed to keep his barons on side if he was to maintain his feudal kingdom.
Unfortunately, King John was a pretty dismal – if not delusional – leader, who became increasingly despised by his subjects for his general incompetence. As a youth, without any real inheritance left, he had been nicknamed ‘John Lackland’. This was a man who didn’t inspire much confidence in his men. After his many failed attempts at diplomacy and war-mongering he quickly became known as ‘mollegladium’ (Softsword). One French poet wrote that “no man may ever trust him, for his heart is soft and cowardly”, while the chronicler of St Albans bemoaned that “England reeks with John’s filthy deeds, Hell itself is befouled by John”.
Treachery and corruption were the staples of a king who had sold off his family’s land to the French, actively campaigned to keep his crusading brother – Richard the Lionheart – locked up in jail, and dispatched his 15 year old nephew Arthur of Brittany – rival to the throne – by reportedly throwing his bludgeoned corpse into the river Seine.
Within 5 years of his rule (1199 – 1216) King John had lost more than half of his kingdom. With England now split from Normandy for the first time since 1066, the hard work of his Plantagenet forefathers lay in ruins. Barely holding on to his hereditary territories in Aquitaine (South Western France), John was desperate to recover his losses and started throwing money at hopeless campaigns abroad.
To fund these reckless fancies, the King began to extort vast amounts of money from his subjects, imposing heavy military taxes and exploiting his feudal rights by charging dizzying sums for barons to inherit and marry. One of his most extravagant swindles was an £11 million levy (in today’s money) on one lord for the privilege of marrying John’s ex-wife. Those who complained had their estates seized, properties burned, and livelihoods ruined. One baron – William de Briouze – was run out of the country while his wife and son were starved to death in prison.
It was against this backdrop that rebellion began to brew. The disastrous Battle of Bouvines in Flanders – on 27 July 1214 – proved to be the straw that broke the proverbial camel’s back. Returning from France from yet another humiliating defeat, King John faced an altogether more dangerous opponent, his own angry barons – led by Robert Fitzwalter. By the following spring, a full scale revolt was at hand, with the barons renouncing their allegiance to the throne. It seemed, John remarked, that “the body wished to rule the head”.
Robert Fitzwalter demanded the restoration of the ‘Charter of Liberties’, first drafted by Henry I in 1100, 114 years previously. This Charter is often overlooked, but it was the first real document to acknowledge the rights of the nobles and of the Church as distinct from the King. In many senses it was the precursor to, and inspiration for, the Magna Carta that followed.
To thrash out a settlement and break the prevailing stalemate, the men agreed to meet at Runnymede – neutral marshland on the banks of the Thames – on 15 June 1215. An agreement was eventually reached with the ‘Article of the Barons’ in which the King rather grandiosely promised ‘justice to all men’. One suspects that he would have said anything just to get out of there, and never had any intention of sticking to it.
Safely away from the confrontation, King John made a sneaky appeal to the Pope, blubbing that the settlement had been extorted out of him by force. A papal bull rendered the agreement null and void. After all this, it’s remarkable to think that the Magna Carta survived at all.
John soon met his comeuppance in the Civil War that followed. With no alternative challenger to the throne, the infuriated barons turned to the then French prince – Louis VIII – for help, offering him the English crown if he defeated King John. The invaders and their 7000 troops were eventually seen off, but not before John was killed in the ensuing battle at Newark on 19 October 1216. The barons had made a bold statement about the real balance of power in the kingdom. Future monarchs would be at constant pains to appease their plotting subjects and ward off the threat of rebellion.
John’s son, Henry III was only 9 years old after the war, so the Earl of Pembroke – William Marshall – stepped in as Regent until the prince came of age in 1227. This enabled William to use his power and influence to restore the Magna Carta to its former glory, albeit with a few face-saving amendments for the new king.
The Great Charter’s 4000 words were painstakingly transcribed onto sheepskin in Medieval Latin. Thirteen copies were made, of which four survive. To mark the anniversary of its signing, the British Library has gathered the extant editions together from Salisbury Cathedral and Lincoln Castle for a unique public exhibition.
The key principle that the Charter established is that no-one, not even the King, is above the law. For the first time, the monarchy – and later parliament – was bound by the very rules it expected everyone else to follow. This completely changed the way government dealt with and treated its citizens. The King was now on an equal footing with his people.
The King’s law had become the ‘Common Law’, a system that relied then, as it does now, upon precedents (previous judicial decisions) rather than codified rules in order to reflect the kingdom’s ever-evolving customs and social conditions.
There are 63 clauses in Magna Carta, but only a few of these have any real resonance with us today. The most famous of these is clause 39:
“No free man shall be arrested, imprisoned, dispossessed, outlawed, or exiled… except by the lawful judgment of his peers or by the law of the land”. It was a watershed moment for British justice, enshrining the concept of ‘innocent until proven guilty’; and – by the 14th century – establishing trial by jury. The provision was designed to safeguard citizens against abuses of power by the King or Judiciary, which is why so much emphasis is placed upon the primacy of the jury in the Court of Appeal today. Although our Judges cannot interfere with a verdict simply because they disagree with the decision reached, it has left us with another problem – what happens when the jury get it wrong? In March 2015, the Justice Select Committee tasked the Law Commission with this very issue, with a view to bringing in new legislation to qualify this principle in miscarriage of justice cases.
The Magna Carta was the first document to introduce the idea of ‘freedom’ into law, evoked in Article 5 of the European Convention on Human Rights – the right to liberty and security. This clause in the Magna Carta also led to the Habeas Corpus Act of 1679, which gave citizens further protection against arbitrary detention. The concept of habeas corpus (literally, “you have the body”) has been adopted in countries across the world to guarantee freedom from wrongful imprisonment. These days, it is mostly used to challenge extradition and deportation from the UK.
Clause 40 of the Magna Carta pledged, “To no-one will we sell, to no one will we deny or delay right or justice”. This is a key feature of modern access to justice provisions, and it can be clearly seen in Article 6 of the European Convention – the right to a fair trial. At the time, it granted all citizens access to the Courts for a reasonable fee.
Taken together, these two clauses have served as the founding basis for the American Declaration of Independence and the 1787 Bill of Rights in the Constitution of the United States. A golden copy of the Magna Carta lies beneath the dome of the US Senate, and it still remains on the statute books of 17 of the 52 states. Of course, this hasn’t prevented the US flouting the basic tenets of clause 39 in Guantanamo Bay.
Magna Carta also established: the freedom of the Church of England (clause 1) – famously ignored by Henry VIII; rules of inheritance that prevented the state appropriating privately-owned land (clause 2); the official independence of the City of London – making the Corporation of London older than parliament itself (clause 9); an independent ‘Court of Common Pleas’ (clause 11) which wasn’t presided over by the King or held in his palace (‘Curia Regis’) – this initiated the separation of powers we know today between our judicial, executive, and legislative bodies. There were also clauses for fair taxation and the protection of property. The barons and bishops who regularly met to discuss these matters were forerunners of the Houses of Parliament.
Our Magna Carta has been invoked in British parliament ever since, whenever tyranny, corruption, or injustice has reared its ugly head. In America alone, it has been quoted 400 times in the Supreme Court, including during the impeachment of President Nixon. Here is a document that not only enshrines the sovereignty and supremacy of law, but defines us as a nation. Its significance has echoed through the ages. Far from being an irrelevant relic of our feudal past, it remains a living, breathing instrument for freedom and justice in a democratic society.