Magna Carta: Freedom under Law
In a meadow at Runnymede 800 years ago history was made. Until Magna Carta the King of England was an absolute monarch, and in all practical ways his will was law. However, in June 1215 that all changed and for the first time everyone, including the monarch, was bound by the same statutes. Magna Carta had established the notion of rule of law.
King John came to the throne in April 1199 on the death of his brother, Richard I, and earned himself the reputation of being one of the worst monarchs England has ever had. He abused the feudal system, seizing land, raising taxes and imprisoning anyone who stood in his way. He relied heavily on his barons to keep order and to ensure that any money owed to the monarch was collected. John was in financial difficulty. The war in France was proving very costly. Many of the territories in France which Richard had fought for were lost by John, resulting in a loss of reputation and a lack of income from the taxes raised there. To meet the mounting costs, John ignored traditions and extorted more money from his subjects. This alienated the barons who then rebelled against the King and tried to assassinate him in 1212. This unsuccessful attempt angered John who seized land belonging to the rebels, provoking civil war.
By May 1215 the barons had taken London, forcing the royal household to Windsor Castle, before moving west towards Staines. A deal was brokered between King John and the barons who agreed to meet on 10th June 1215 at Runnymede, a large flat expanse of meadow near Egham, ideally situated between the two warring factions. The barons presented the King with a document known as the Articles of the Barons aimed at curtailing his powers. Once the detailed agreement had been decided, royal officials drafted the full text of Magna Carta, the Great Charter, which was sealed on 15th June 1215. Four days later peace was declared and the rebel barons swore their allegiance to the King once more. Magna Carta was not made law; it was more of a working document setting out how the country would be run.
King John agreed to Magna Carta because he had no choice. He could not afford to fight a civil war, but he clearly had no intention of adhering to the charter. In July 1215 John sent an envoy to the Pope, seeking an annulment to Magna Carta, which was granted in August 1215. Civil war once again broke out in England. However, on 18th/19th October 1216, King John died suddenly and a revised version of Magna Carta was issued on 12th November. The charter was again revised in 1217, 1225, and finally in 1297 when the text of the latest edition was copied onto the first statute roll and was officially incorporated into English law.
There was more than one copy of Magna Carta written in 1215. No one knows exactly how many there were but there must have been at least 41 as it was reportedly sent to every sheriff and bishop in England. Today, only four of the original version still exist, as well as a further thirteen from subsequent re-issues. No two copies are identical with each handwritten in shorthand Latin, and each reissue slightly amended from the previous to meet the needs of the time.
The Growth of the Myth
Why is Magna Carta seen as the foundation of democracy, and was this the intention of the barons? The clauses, written on a small piece of vellum in short hand Medieval Latin, were only in force for nine weeks but their legacy has lasted centuries and has spread across the globe. Magna Carta is revered across the world as the first statement of the fundamental principles of liberty that we enjoy today. However, in reality the charter dealt with the long standing grievances of the barons, limiting the King’s rights in specific areas of feudal taxation and administration. It mainly benefited the Church and the highest ranking in society. The two most famous clauses; establishing the right of all to be judged by their equals, and outlawing imprisonment of free men without a trial, were clauses 39 and 40 out of a total of 63. Today, 800 years later, only four are still law.
Magna Carta is seen as the point in history when the arbitrary rule of the king was ended and where certain rights of the free man were guaranteed. However, the barons, in forcing John’s hand into agreeing to their demands, were not interested in civil rights. Neither were they thinking of the peasantry who made up 80% of the population at the time, as they were not free men and therefore it did not apply to them. Its purpose was to protect the nobility from the King, and for the King to appease the barons and end the civil war. It addressed issues of land management and river navigation, regulated the management of royal forests and restricted the levying of taxes without common consent. These were the day-to-day issues of feudal governance. There had been royal statutes in England before Magna Carta, indeed there had been unsuccessful attempts to bind the king to the rule of law, but it was Magna Carta that became an icon of democracy across the English speaking world. Over the centuries the myth of Magna Carta has grown despite the fact that it does not mention democracy or habeas corpus. Nor does it set out laws or explicitly refer to the rule of law. It is a myth born of 800 years of interpretation.
For three centuries Magna Carta meant little to anyone outside of the legal profession. It had been incorporated into statute in 1297 and almost forgotten. The iconic status of it as a document of liberty grew largely as a result of 16th century re-examining of it by Sir Edward Coke. He wrote extensively on the subject of both common and civil law, although the publication of his ‘Institutes of the Laws of England’ was banned until 1642, eight years after his death. Coke declared that the laws of England were ‘the best inheritance’ that the subjects have. In the second part of ‘Institutes’ Coke wrote the first comprehensive account of the importance of Magna Carta at the time and its legacy to date. Coke was writing at a time when there was a fractious relationship between Crown and Parliament. Charles I had disregarded common law and Magna Carta, and had continued to raise taxes by royal prerogative, resulting in the ultimately unsuccessful attempt by Parliament to re-affirm the rights of the great charter in 1628. Even after the civil wars the restored monarchy had not learned its lesson. In the years after the Glorious Revolution which saw James II overthrown for William and Mary, Magna Carta came to embody the core principles of the contract between government and the people. The Bill of Rights, which was passed in December 1689, curbed the abuse of prerogative power and established the principles of free elections and freedom of speech within Parliament (parliamentary privilege). In short, it enshrined in statute what many considered the ancient rights and liberties of Magna Carta.
From the 17th century onwards Magna Carta was associated with British liberty and freedom, and with opposing autocratic and corrupt rule, a notion that was propagated throughout subsequent centuries with the rise of political prints and cartoons. During the 18th and 19th centuries references to Magna Carta, or Magna Charta as it was called at the time, focused increasingly on the clauses which were interpreted as being trial by jury and no taxation without representation. In the 1820s and 1830s it was increasingly used by those who wanted reform as well as by those who did not. The Chartist movement was born of a desire to have a ‘People’s Charter’, a Magna Carta for the masses. They argued that the nobility got their rights protected in 1215 and the middle classes got theirs with the 1832 Reform Act. Alas, Chartism ultimately proved unsuccessful. Magna Carta had become all things to all people whilst at the same time successive reviews of the statute book in 1829, 1863, and 1879 meant that by the end of the 19th century most clauses had been repealed. By the end of the century the myth of Magna Carta was complete.
Today, only 30 or 40 words from the original document are still in legal usage. Most were written out of statute during Victoria’s reign although some remained into the 20th century when an attempt in 1966 to rid the country of redundant legislation cleansed the rest. Only parts of the first clause on the Church, clause 13 on rights of the City of London and clauses 39 & 40 on general rights of free men are still law today.
Freedom of the Judiciary & Political Freedom
In 1215, Magna Carta had a profound effect on the judiciary of the country, establishing the most fundamental concepts of our legal system today. The purpose of the document was to ensure that the king was also subject to the laws of the land himself and that the rule of law applied across the country. The dispensing of justice in Medieval England had been of an arbitrary nature. The king, travelling around the country, would listen to serious local disputes and pronounce judgement on them. He would not necessarily reach the same conclusion for the same perceived crime, and less scrupulous monarchs would rule in a way that benefitted them rather than in a way that was just. Alongside these royal courts there were Church courts and manorial courts which were more like village meetings where the residents would decide the outcome based on what they believed to be right.
Clause 17 of the charter stopped the peripatetic nature of the Courts stating they should be held in one place and not held wherever the king happened to be staying. This simple act began the process of separation from the Crown and established freedom and autonomy for the judiciary. Judges, sitting without the king present, could not be as easily swayed by him or overruled by him. The physical distance from the king made clause 45, which states that judges will apply the law of the realm (as opposed to the will of the king, the rulings of the church or local law), easier to uphold. This was an important development at a time when local law could vary considerably from place to place, and it reaffirmed the principle of common law. Equally significant to justice across the country was clause 40 affirming that justice would not be sold or delayed. This guarantee applied to all the courts in the land and aimed to prevent bribery of judges.
Unfortunately the journey towards judicial independence that started with Magna Carta had many faltering steps along the way. The Court of Star Chambers, for example, dispensed justice based on the king‟s prerogative from Tudor times onwards, and became increasingly tyrannical towards royal opposition. When the Star Chamber was finally abolished in 1641, Magna Carta was invoked as evidence that cases ought to be tried in ordinary courts of justice. However rocky the road, Magna Carta began the journey towards the modern legal system with due process and the rule of law culminating in a completely free judiciary.
With the interpretation of Magna Carta as a charter of liberties, it became a focal point for the disenchanted and the disenfranchised throughout the 17th and 18th centuries, not just in England or indeed Britain, but across Europe. It was used in France to justify successive revolutions as the populous rose up against their autocratic monarch and demanded liberty and equality; principles that Magna Carta had come to embody. Similarly it was used in America to push for independence from Britain. It became an important part of the drive for political as well as civil freedom, and as such was often invoked in the early days of the trade union movement.
The rapid industrialisation of Britain in the early 19th century created a demand for goods for export across the globe. The economics of production saw some factory owners place profit ahead of the needs of their workforce, and employees were forced to work long hours for little pay in unsafe factories. Before long workers began to agitate for better conditions, and although collective bargaining had been outlawed since the middle of the 14th century, trade unions began to emerge. In 1799 the Combination Act banned trade unions, but despite this more and more were formed as workers pressed for better pay, shorter hours and political freedom. Strikes were ruthlessly crushed and demonstrations were violently dispersed as trade unions remained illegal until 1871. Whilst the right to peaceful protest and freedom of association were now lawful, laws on public disturbance, the protection of morals and protecting the freedoms of others limit the extent to which this is possible. Controversial changes to the law in 2005 made peaceful protest anywhere within one kilometre of Parliament Square in London illegal as part of national security measures. In 2011 this law was repealed and, instead, new legislation prohibited certain types of activities within Parliament Square itself.
The text of Magna Carta sets out certain freedoms for all free men, but in the intervening centuries between 1215 and the beginning of the 20th century the term „free man‟ had been accepted as meaning the common person. This is why supporters of the suffragette movement were able to use Magna Carta in support of their demands for political freedom. It and the Bill of Rights were also used by defence lawyers who decried the imprisonment of women protestors with claims of habeas corpus.
Freedom of Speech & Expression
Magna Carta has been held aloft as an icon of democracy for centuries but some of the most fundamental liberties are not part of its provision. However, what it did do was to begin the process of assuring free speech, freedom of expression and pave the way for a free press.
Campaigning for free speech really began in the 16th century with the invention of the printing press. Authoritarian rulers were immediately wary of the impact that readily available, uncontrolled information of all kinds would have on the population. The Church and governments across Europe censored printed material, introducing legislation which ultimately led to the copyright laws we have today. From then until 1694, there was strict censorship in England with no publication allowed without a government-granted license. The offense of ‘seditious libel’ made it illegal to criticise the king or the government and was used to silence all opposition. When radical lawyer Arthur Beardmore published criticism of the royal family in 1762 a warrant was issued for his detention. Legend has it that, on hearing of his imminent incarceration, Beardmore made sure that when he was arrested he was found teaching his son about Magna Carta. The charter was used in court to defend not only his freedom from illegal detention but also the liberty of the press. However, in reality it was not the 1215 document to which he owed his freedom of speech but the 1689 Bill of Rights.
Even with the guarantee of free speech there have always been some restrictions on what can be said or written; freedom, but freedom under law. Justice William Blackstone, writing his commentary on the laws of England in 1769, suggested that if it could be shown that whatever was said or written had led to “violent revenge” then the author could be prosecuted, regardless of whether or not it was true. Freedom under the law guarantees rights subject to legislation whether that be libel or privacy laws, incitement or discrimination. For over 200 years free speech has been upheld as one of the most fundamental civil liberties, but it has, in reality always been constrained. Nineteenth century philosopher John Stuart Mills wrote extensively on the problem of authority versus liberty and concluded that an individual had the right of expression as long as he did not harm other individuals.
Nowhere symbolises this country’s commitment to free speech more than a small area of land in one of the capital’s most famous parks. Speaker’s Corner in Hyde Park has been a powerful symbol of this liberty for well over a century. People have gathered there to hear orators canvassing for support, preaching, converting or just exercising their right to free speech since the middle of the 19th century when reformers held mass protests against the suppression of the rights of working people, including the right of assembly. The Chartists and the Reform League rallied support from Speaker’s Corner, and although such gatherings were initially dispersed as illegal ventures, the 1872 Parks Regulation Act finally permitted public meetings. Over the years it has not just been well-known speakers, such as Karl Marx, Lenin, William Morris and George Orwell, who have exercised this right, but members of the general public wishing to have their voice heard.
In 1786 Thomas Jefferson, principle writer of the American Declaration of Independence, wrote, ‘Our liberty depends on the freedom of the press, and that cannot be limited without being lost’. Today, as it was 200 years ago, this liberty is amongst the most prized and most fought over of all. Without a free press governments and individuals cannot be held to account and all other liberties are therefore threatened. However, in Britain in recent years much has been spoken about the need to regulate the press. Those in favour explain that ensuring that the press does not intrude on the civil liberties of others does not mean the press is not free. Those who defend the press argue for long held liberties.
Governments and leaders across the world and throughout history have sought to censor the press, restrict knowledge and prohibit publications for the benefit of the nation. In times of war controlling the flow of information is vital to keeping the upper hand. During both the First and the Second World Wars a Ministry of Information was established whose purpose was to ensure the enemy was ill-informed, or even misinformed, about military matters. This inevitably meant that the British public were also kept in the dark. However, censorship also happens on a daily basis even in the most democratic societies. Song lyrics are removed, films edited, publications banned, all in the name of public interest.
In 2014 only one in seven people in the world live in a country with a free press. The countries in which journalists do enjoy these liberties are not only able to report openly as they see fit, but their safety is also guaranteed. The advent of the internet and social media may make it easier for individuals to publish their ideas, beliefs and voice their thoughts, but it is also easier for governments to monitor and control. This brings fresh challenges in the balance between liberties and the responsibilities that come with them.
Arguably the most famous clauses of Magna Carta, the clauses which have impacted most on lives of the common man and are most familiar to us 800 years later, are 38, 39 and 40:
In future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it.
No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.
To no one will we sell, to no one deny or delay right or justice.
These clauses evolved to mean that no person should be deprived of freedom without due process of law. This principle was not in fact new to Magna Carta, as it had previously been attempted almost half a century before Runnymede, but it was with the original 1215 document and subsequent reissues that this ancient prerogative began to take hold in common law. The Habeas Corpus Act 1640 established that the authority of the monarch was not in itself justification for imprisonment. From the Latin meaning ‘you have the body’, the writ of habeas corpus required gaolers to produce the prisoner at a designated time and place so that the courts could properly examine the lawfulness of the detention.
Despite being enshrined in law, in both this country and others, habeas corpus did not end forceful imprisonment as it applied to free men only. People considered as the property of others did not, therefore, feel the benefits. Slavery has existed since the ancient times when early civilizations captured their defeated enemies. In Britain, slavery had been common place during Roman occupation, and on their withdrawal it became an essential part of the feudal society. These serfs belonged to their lords, to do with as they saw fit, and were passed on from estate owner to estate owner. However, unlike the slaves from Africa later in history, they were generally not physically abused as they were essential to the feudal economy and difficult to replace. Serfdom remained in England until 1381 when it was finally outlawed.
Slavery in Europe re-emerged with the discovery and colonisation of the New World. Plantations in America needed people to work on the land and explorations to Africa found a ready source. Initially the slaves were exchanged for guns, with local chiefs willing to sell their enemies for new weapons. However, with time slave masters decided to forego the payment and just take the people they wanted. Slave raids became common place as this lucrative trade grew. With an almost never-ending supply, there was no need to ensure their safe transportation. In the 1750s 20% of slaves died in squalid conditions on their journey. From the late 16th century until the early 19th Britain dominated the slave industry with ports such as Bristol and Liverpool benefiting from the prosperity it brought. It has been estimated that between 1700 and 1800 over 40% of the six million enslaved Africans were transported in British ships. British traders justified this trade by claiming these people were barbaric savages and therefore the law did not apply to them. As the centuries progressed, and as the rights and liberties of British subjects became enshrined in law, reformers began to question the ethics of the slave trade. From the 1770s until 1807 when it was finally abolished in Britain, campaigners such as Chertsey resident Charles James Fox and Yorkshire man William Wilberforce pushed to end this inhuman treatment of others. In May 1788, Fox launched the first parliamentary debate on the slave trade which he denounced as the ‘disgraceful traffic’. He declared it should not be better regulated, rather it should be destroyed. He and other campaigners used Magna Carta and habeas corpus to support their assertions. Although the Act for the Abolition of the Slave Trade was introduced in Parliament by Fox, he died six months before the Bill was passed. Whilst the trade in people was illegal in the British Empire from then onwards, it was not until the Emancipation Act of 1833 that slavery itself was outlawed. Other European nations followed suit and, with the passing of the 13th Amendment in 1865, slavery was abolished in the United States of America too.
In the 21st century with legislation ensuring personal freedoms and liberties on the statute book, slavery should be consigned to another age. However, recent government figures put the total of number of victims of slavery in the UK at between 10,000 and 13,000. Modern slavery incorporates a variety of human rights abuses from trafficking to the exploitation of child labour, and it is estimated that the many forms of slavery are worth about £12 billion globally.
Freedom of Religion
The rights of the church in England were at the very heart of Magna Carta. The first clause establishes its freedom for all time.
[this charter has] confirmed for us and our heirs in perpetuity, that the English Church shall be free, and shall have its rights undiminished, and its liberties unimpaired
In the years prior to 1215, as sovereign states grew more powerful, tension had grown up between church and state. Whilst the promise of clause 1 seems noble in intent, in reality, it was designed to guarantee freedom from the king, leaving the authority of the Pope unchallenged. Not until Henry VIII broke away from the Catholic Church in 1534 was this authority questioned. However, Henry insisted on keeping the traditional Catholic practices in his new Church of England. The dissolution of the monasteries in the late 1530s was not about removing religious practice but rather about acquiring wealth and power. At the time one in every fifty adult men was in a religious order and closing them down also removed centres of dissent.
Catholic practices continued in England until Thomas Cranmer and his team of clerics penned the Book of Common Prayer in 1549 in the grounds of Chertsey Abbey. Its publication finally introduced new services and practices for the Church of England. In 1553 Catholicism was briefly restored to England under Mary I who earned her name of Bloody Mary for her persecution of Protestants. However, with Mary’s death five years later, Elizabeth I came to the throne and became supreme governor of the established Church of England. The 1559 Act of Uniformity forbade the use of any services not within Cranmer’s Book. From this point onwards Catholics were not legally able to worship in England and were barred from public office until the law was repealed in the 19th century. It is still not possible for a Catholic to become monarch; however, since the Secession to the Crown Act 2013 it is now possible for a monarch to marry a Catholic.
Magna Carta and its promise of religious freedom was regularly invoked throughout the 1580s especially with regard to what some saw as illegal oaths, and by the 1640s its freedoms were thought to encompass freedom of worship and freedom of conscience. It was pursuit of these religious freedoms that led the Puritans to set sail for new colonies from 1620 onwards. Whilst they were Church of England, they disagreed with the hierarchy of bishops and clerics and believed that there should be no intermediaries between God and man. The Founding Fathers of the United States believed the only way to maintain their religious freedom was to make a clear separation between Church and State, a notion that is still fundamental to the American way of life. Whilst the right of freedom of religion was not included in the original draft of the U.S. Constitution, the First Amendment prohibits the making of any law respecting an establishment of religion or impeding the free exercise of religion.
Religious persecution is as old as religion itself. Whether it be the murder of Christians in the Colosseum of Ancient Rome, expelling all Jews from England in 1290, the Crusades against Islam in the Middle Ages or more modern persecutions including those in Nazi Germany and the massacre of Muslims at Srebrenica in 1995, the human race has always struggled to guarantee religious freedom throughout the world. It was as a response to the atrocities of the Second World War that the United Nations was founded and the Universal Declaration of Human Rights was adopted by it in 1948. This global expression of human rights binds signatory nations to uphold freedom of thought, conscience and religion.
The Legacy Today
In the intervening centuries since that historic meeting at Runnymede, the reality and the myth of Magna Carta have had an enduring affect on the laws and lives of people across the globe. During the 16th and 17th centuries trading companies were expanding in size and power and many looked to the New World to further their interests. With economic expansion came the proliferation of the democratic values epitomised by the historic document, and the bestowing the freedoms of English common law on the population: Magna Carta had reached the Americas. It was deemed necessary to extend these privileges overseas as inducement for others to make the journey, safe in the knowledge that their liberties were as secure in the colonies as they were at home. However, early settlers felt that these liberties were vulnerable to withdrawal by a monarch so far away, and so they became more vocal in their defence than their counterparts in Britain. Newly founded states created their own charters, enshrining the liberties of the old country as detailed in Magna Carta and the English Bill of Rights. Many of these charters included specific reference to the clauses concerning property rights and the judiciary. By the 18th century these rights, inherited by America from Britain, were used as a weapon to establish independence.
From the 1760s onwards there was growing disquiet in the colonies with British rule. With the Stamp Act of 1765, the British government had raised the first direct tax in America forcing newspapers, licenses, legal writs and even playing cards to carry a stamp showing the tax had been paid. As the various states had not been asked to agree to the new tax, their leaders looked to Magna Carta to justify their dissent. Clause 12 of the original 1215 charter, which states that ‘no 'scutage' or 'aid' may be levied in our kingdom without its general consent’, was cited as evidence of its illegality. ‘No taxation without representation’ became the rallying cry for independence, and although Parliament quickly rescinded the Stamp Act, it was too late to stop the momentum.
The Founding Fathers of the United States used Magna Carta as the historic precedent for asserting their ancient liberties from George III, and reiterated Edward Coke’s view that all acts against these liberties were illegal and therefore void. With the Declaration of Independence in July 1776 all previous charters became invalid and so new protection for individual freedoms was needed. Many of the new statutes contained clauses from Magna Carta, especially those referring to habeas corpus, trial by jury and property rights. The first draft of the American Constitution was felt by many not to go far enough in enshrining these rights in law, and it only passed on the promise of a series of additions. The 8th Amendment, for example, which bars the excessive imposing of fines or the use of cruel and unusual punishment, is taken verbatim from English Bill of Rights. Other Amendments protect freedom of speech and freedom of the press.
The United States was not the only country, new or established, to look to Magna Carta for the foundations of their rule of law. The 1814 Chartes Constituionelles of France was deliberately modelled on the great charter with its opening 12 clauses mirroring those of the Bill of Rights in establishing equality before the law, due process, and freedom of the press. Belgium followed their example in 1830 and throughout the 19th century countries throughout the British Empire quoted Magna Carta to their ‘oppressors’. Empirical expansion had resulted in the principles of Magna Carta being exported across the globe, and therefore, it is not surprising that, when obtaining independence from Britain, countries such as India, New Zealand and South Africa, to name just a few, looked to enshrine these ideals in their new constitutions. Indeed, Section Three of the Indian Constitution, which pertains to personal liberties, is known as the Indian Magna Carta. Ironically, at a time when many of the clauses of this great document were been repealed and replaced in British statute, their guiding principles were growing in importance across the world.
With the founding of the United Nations in 1945 Magna Carta once again became globally relevant. Formed as a response to the destruction and loss of life of the Second World War, the UN looked to established agreement between member countries on the human rights of all people. Eleanor Roosevelt, widow of President Franklin Roosevelt, was a passionate exponent of the rights of individuals and drove through the adoption of the Universal Declaration of Human Rights in 1948. As Chair of the Human Rights Committee, she referred to the document as the international Magna Carta for all mankind. The UDHR proclaimed as the highest aspiration of the common people...[that] all human beings are born free and equal in dignity and rights.’ These aspirations also became part of the European Convention on Human Rights, ratified by the Council of Europe in 1953. The 18 Articles of the ECHR protects the right to life and freedom of speech and expression. They guarantee the right to a fair trial and prevent unlawful detention. They guarantee freedom of religion and freedom of thought whilst legislating against discrimination. In short, they ensure that the principles of Magna Carta protect British subjects today as they have for centuries.
In a very real sense, the legacy of Magna Carta in Britain in the 21st century has been reduced to only four clauses which still affect English law: freedoms for the Church in England, freedoms for the City of London, and the two most famous clauses pertaining to trial by jury, unlawful imprisonment and access to justice. However, the true legacy of Magna Carta is as an icon of democracy, enshrined in legislation around the global, ensuring that subjects can live their lives with the guarantee of freedom under law.