Inside Story

A Magna Carta moment

After eight centuries the revered document of liberty still grips the political imagination, says David Hayes in London

David Hayes 5 June 2015 3622 words

Under duress: King John at Runnymede, as depicted by Joseph Martin Kronheim in Pictures of English History (1868). Wikimedia

In any hierarchy of anniversaries, the 800th birthday of the Magna Carta has a good case for admission to the A-list. Enshrined as a landmark of transnational as well as English liberty, cited by such global luminaries as Mahatma Gandhi, Nelson Mandela, and the Zapatista’s Subcomandante Marcos, and with surviving copies on permanent display in Canberra and Washington, the “great charter” has travelled far beyond its origins at Runnymede, a water-meadow on the river Thames eight miles west of London, on 15 June 1215.

That very journey makes it a freighted symbol of England, or Anglo-Britain, itself: source code for ideas of justice and institutions of law, but also prefigurative of the hegemonic role the country would assume in later centuries. In practice the two aspects – freedom vs coercion, commonwealth vs empire – tend to be viewed in isolation from one another, although the inspiration and the violence spring from the same state, albeit across many centuries and forms of rule. Britain’s history and politics are so much ambiguity, which only heightens the temptation to paint them in primary colours.

The pattern of separate rooms continues in the deluge of commemorative activity that has been in train for months – books and documentaries, exhibitions and conferences, plays and stamps, school projects and dedicated websites – which will reach a media peak on 13–15 June. Much of it, as with its Great War equivalent (ongoing, but now taking a breather), is of absorbing interest: works by the medieval historians Nicholas Vincent and David Carpenter (including the latter’s magnificent new exegesis), the associated Magna Carta Project at the University of East Anglia, and a British Library exhibition (“Magna Carta: Law, Liberty, Legacy”) are a few examples. There is also an “alternative Magna Carta festival” that “recognises [its] importance in curtailing the powers of the executive, and which challenges and appraises modern Britain’s attitude to civil liberties.”

Again like the Great War memorialisations, much is comforting and formulaic. Anglo-Britain prefers to avoid dialogue with the past, and its rival establishment and oppositional versions refuse to engage with each other, instead “celebrating” national history in an endless feedback loop. This really is a country of permanent involution, though gifted voices on both sides can provide genuine enlightenment.

The political context of the latest centenary gives it an added piquancy, for the main events approach at a time when the United Kingdom is entering a new phase of constitutional turmoil that demands much more from state and government than a passive reliance on eternal verities. The immediate background is the general election on 7 May, whose result – a narrow Conservative victory – confounded expectations of another hung parliament, but which otherwise has left the country’s future as unsettled as before.

A Scottish National Party, or SNP, avalanche north of the border keeps alive the issue of Scotland’s place in the union. A referendum on Britain’s membership of the European Union opens uncertainty on another flank. (It also creates the possibility that these two contests over sovereignty might collide, since a majority vote for “Brexit,” exit from the European Union, in England but in broadly more pro-EU Scotland, would certainly move the Scots closer to “Scoxit,” exit from the United Kingdom.) And these existential matters in turn raise the profile of perennially unsolved questions – among them the role and composition of the House of Lords, England’s governance, defence and security priorities, financial devolution, and electoral reform.

This slew of unfinished business fuels arguments, widely aired before the election, for a constitutional convention able to address it in the round. The idea finds support across the spectrum: the Telegraph, the New Statesman and Conservative Home, Democratic Audit and the Electoral Reform Society, Unlock Democracy and researchers at the Constitution Unit, academic grandees such as Onora O’Neill and Vernon Bogdanor, and the House of Commons constitutional committee.

No less ambitiously, there is some momentum for a “charter of the union,” which would in effect establish a single grand bargain for the multinational state by defining the powers, relationships and funding arrangements of its representative bodies. The emerging, if coded, consensus is that a ramshackle institutional system must reinvent itself as quasi-federal in order to avoid being stretched by centrifugal pressures to the point of secession.

There are echoes here of the spirit as well as the language of Magna Carta, though also of Giuseppe Tomasi di Lampedusa’s novel The Leopard, whose most famous line supplies the informal motto of Britain’s governing elite: “If we want things to stay as they are, things will have to change.” This is apt, for both medieval document and modern novel tell a story of aristocratic survival whose conservative and radical threads are entangled. Ambiguity can be the secret of staying power.

No hint of any such promise was glimpsed in 1215. Much of the 4000-word document inscribed in Latin on sheepskin parchment and sealed at Runnymede was concerned with workaday matters such as weights and measures, the placement of fish-weirs, and the treatment of French mercenaries and Welsh hostages. It was annulled even before the vellum was dry. Yet it withstood this early flirtation with history’s capacious dustbin, had a quick makeover, relaunched itself under a new label, and resumed its way to global celebrity. (Ralph Turner’s Magna Carta, published in 2003, is the essential biography.)

The 1215 charter came a century and a half after the Norman (French) invasion and brutal subjugation of Anglo-Saxon England. It was originally called the Charter of Liberties (Carta Libertatum), following a precedent in 1100 when the new king promised church and nobility an end to the “bad customs by which the kingdom of England was unjustly oppressed.” Its immediate occasion was a struggle within the, by then, Anglo-Norman elite, pitting barons intent on securing their interests and income stream against an extractive and gluttonous monarch. A “practical solution to political problems, not a statement of legal precepts,” writes Turner. Under duress, King John agreed to its terms. He procured a ruling from Pope Innocent III two months later declaring it void.

Under this pressure the barons’ revolt only swelled. The king went on the run and expired after a binge too many; a French invasion force augmented the turmoil. But the nine-year-old Henry III – John’s son – was enabled by loyalist advisers and papal support to hold on to his crown. An amended charter was issued in 1217 alongside a “Charter of the Forests,” their combined size reflected in the new description “Magna Carta.” It was, however, a third, shorter and tighter, version in 1225, affixed with the king’s seal, that acquired greater authority.

So “Magna” enters in 1217. The definitive text comes from 1225. And the document, put together in a mood of “and another thing…,” and being tidied up until the last moment, was finalised on 19, not 15, June. Anniversaries can be arbitrary. Moreover, the impulse in 1215 was conservative not radical: the barons were seeking to defend their estates and revenues (and, it seems, wives) from royal avarice rather than to initiate a new order. But in one of history’s familiar twists, imposing limits on arbitrary power turned restorers into unwitting renovators. The idea that the sovereign’s authority too was constrained, and by extension that a framework of law binds “the community of the whole land,” was the seed that gave the Magna Carta its chance of long-term life. The charter survived, writes David Carpenter, “because it asserted one fundamental and treasured principle, that of the rule of law.”

Supporting evidence comes in the form of two of the 1215 charter’s sixty-three provisions. The thirty-ninth by sequence (there is no numbering) declares that “[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 other way… except by the lawful judgement of his equals or by the law of the land”; the fortieth, “To no one will we sell, to no one deny or delay right or justice.” The former is one of only four clauses still on parliament’s statute book after extensive winnowing in the 1860s and 1960s; another, from the 1225 version, says “anything contrary” to the charter “shall be held for nought.” (The remaining two guarantee the freedom of the English church, and that London and other centres “shall enjoy all their liberties and free customs.”)

The oft-quoted pairing of “lawful judgement” and “right or justice” has long fed the popular notion that the Magna Carta championed what was later called the “free-born Englishman” (and its clauses on the rights of widows, as well as its linguistic nuances, are notably accommodative of women). Yet the document’s progressive aura is often embraced self-mockingly, from W.C. Sellar and R.J. Yeatman’s witty satire of school textbooks, 1066 and All That, published in 1930 (“Magna Charter was therefore the chief cause of Democracy in England and thus a Good Thing for everyone (except the Common People)”), to the lugubrious comic genius Tony Hancock, who in 1959 found himself, in Ray Galton and Alan Simpson’s Hancock’s Half Hour, a jury member turned suspect (“Does Magna Carta mean nothing to you? Did she die in vain? Brave Hungarian peasant girl who forced King John to sign the pledge at Runnymede and close the boozers at half past ten! Is all this to be forgotten?!”).

An unlikely progenitor in both respects is the leading early seventeenth-century jurist Edward Coke, whose influential Petition of Right in 1628 claimed inheritance from medieval nostrums of law-making (“Magna Carta is such a fellow, that he will have no ‘sovereign.’”). His reclamation of England’s past would be taken up by parliamentary radicals during the civil wars of the 1640s–50s, and by supporters of the regime change of 1688–89 that brought the Dutch Protestant, William of Orange, to the throne. (That act was sanctioned by the Bill of Rights, which acknowledged the Magna Carta and completed a trilogy of quasi-sacred constitutional texts.)

After 1689, the model of “crown in parliament” proved durable in solving the latest crisis of kingly authority. A remodelled state was able to face down enemies both foreign (mainly French) and domestic (mainly Jacobite, loyal to the ousted Stuart dynasty, largely Catholic and with highland Scotland as their heartland). It also germinated a “Whig” sensibility (parliamentarian, mercantilist, dissenting, self-consciously enlightened), which competed for elite influence with its “Tory” rival (royalist, landed, rentier, pro-established church, proudly nativist), though alignments and ideas were often fluid. In the early 1830s, around the time the Great Reform Act extended the franchise, these turned into more formal political parties, respectively Liberal and Conservative.

The Whig outlook recast the national story as a triumphal march of progress. In its perspective, the 1215 moment could be parlayed as evidence of a radical shift towards freedom under the law. The credo, formalised in the 1720s by an exile of French Huguenot descent, Paul Rapin de Thoyras, would lose its initial monarchist carapace and resound in the eras of French revolution, mid-nineteenth-century Chartism and late Victorian trade unionism, and in crevices of the twentieth-century left.

Colonial expansion transmitted the tale to new climes and saw it sprout in unimagined ways. Lynette Russell’s mind-opening book Roving Mariners: Australian Aboriginal Whalers and Sealers in the Southern Oceans, 1790–1870, published in 2012, tells the story of William Lanne, a survivor of Flinders Island and apparently Truganini’s third partner, who at the time of his death in 1869 had been whaling in the southern Pacific on the boat Runnymede.

This expansive reading – what Herbert Butterfield, in a famous counterblast in 1931, would call “the Whig interpretation of history” – had to withstand a potent counter-argument that the foundation of liberty lay in natural law, from those (as diverse as David Hume, Thomas Paine and Jeremy Bentham) who saw reliance on the Magna Carta as an archaic appeal to a primitive past ruled by custom, common law, and the “ancient constitution.” Equally, a Tory outlook could venerate these, and Magna Carta among them, as organic aspects of Britain’s native genius that super-rationalist Whiggery – or, in the modern era, abstract constitutionalism – might only trample.

Dawn of liberty, just rebellion, law-governed statecraft, patriots’ defence: in standard British fashion, the overlays of history and politics gave everyone a slice of Magna Carta to claim and squabble over.

The contest over Magna Carta’s political meaning goes on just beneath the bland surface of the semi-official 800th anniversary. And sometimes above it: the entrance to that British Library exhibition displays an embroidery, conceived by Cornelia Parker, of Wikipedia’s Magna Carta page on one day in 2014, with dozens of political celebrities separately stitching a single word or phrase (joined by prisoners in British jails whose full names, for legal reasons, are withheld).

Among the needle-and-thread merchants are Julian Assange (“freedom”), Edward Snowden (“liberty”), Shami Chakrabarti of the campaign group Liberty (“Charter of Liberties”), Alan Rusbridger, departing editor of the Guardian (“contemporary political relevance” – an effort that drew blood, left matted into the work as holy grail) and Jarvis Cocker of the pop band Pulp (“common people”), as well as Mary Beard, Germaine Greer, Brian Eno and Jimmy Wales. At well over thirty times the size of any thirteenth-century “original” it overbears; as conformable to dominant vanities, it indulges; as imitative without a hint of artistic allure or engagement, it reproduces for no purpose. It is, to this viewer at least, kitsch.

More centrally, the anniversary’s timing invites campaigners and protesters to try to seize the day by hitching their favoured causes to a Magna Carta interpretation of choice. High politics offers rich pickings: only weeks after the election delivered a Conservative majority for the first time since 1992, the new government is discussing proposals to extend security agencies’ data-gathering capacity, restrict trade unions’ leverage, and introduce a new British (or possibly English) bill of rights.

The latter would entail replacing the Human Rights Act of 1998 and derogating from the European Convention on Human Rights, or ECHR, of 1953. Though immediate plans have been shelved, a broad constituency (political, legal, journalistic, cultural) is making it a flagship issue in early efforts to impede the government’s program. Many senior Tories oppose exit from the ECHR (as they do the separate matter of exit from the European Union); a grouplet on the backbenches is even known as “Runnymede Conservatives.” Attempts both to annex Magna Carta’s mystique, as well, more usefully, to identify its modern legacy, are now everywhere.

A curious exception, so far, relates to Scotland. The SNP’s fifty-six MPs (out of the fifty-nine north of the border) are, as the third-largest contingent, already a conspicuous presence in the new House of Commons, from the dignity of their well-received maiden speeches to jousts over territory and etiquette. The first prime minister’s question time of the new session, on 3 June, saw their parliamentary leader Angus Robertson assail David Cameron over the United Kingdom’s “appalling record” in helping resettle those fleeing war and risking life on the Mediterranean.

The current generation of Scottish nationalists is impressively focused. It is not interested in history or culture, except as blunt instruments. Power alone – getting it, holding it, leveraging it – is what matters. When asked about the Magna Carta, the response tends to be: “Nothing to do with us – it’s an English thing.” There is, though, a Scottish dimension to 1215 and after, which today reaches forward as well as back.

Medieval polities in Britain and Ireland lived by skin as well as sword. As much as on the battlefield, wars were fought via documents, by scribes in the service of rival courts. On vellum were histories forged, lineages invented, claims advanced, details finessed, records loaded. There was plenty of diplomacy too, including marital. Geography was and is destiny: English and Scots, Welsh and Irish are forever interlocked.

Anglo-Norman kings were covetous of sovereignty over neighbouring realms. Such claims were existential for their Scoto-Norman counterparts, who invested heavily in keeping them at bay. Spinning the “homage” Scots monarchs had paid to English – how much and what for – was vital for both sides. So was taking opportunity for advantage when it arose.

Scotland’s king in 1215 was Alexander II. After seeing his father pay protection money to King John and give two daughters as hostages, he allied himself with the barons’ revolt and after John’s death married the sister of England’s new king. Paying homage for the lands he held in England continued – but this did not, he insisted, imply any recognition of overlordship in Scotland itself. That was not the English view. At the end of the century, a series of misfortunes revived the dispute, and led Edward I (“hammer of the Scots,” as previously of the Welsh) to try to enforce a revived claim of sovereignty over Scotland.

That proved expensive, especially as Edward also had campaigns in Flanders to wage. The monarch’s need for money and the nobility’s desire to defend their rights again collided. In the same year as war in Scotland exploded, 1297, the latest iteration of Magna Carta was issued, and for the first time incorporated into statute law. (This is the version held and displayed in Canberra.)

Scotland’s “wars of independence” would last for decades. They fired a sharper consciousness of nationhood, embodied in a letter by members of Scotland’s nobility to Pope John XXII in 1320 pleading for the country’s distinct status to be recognised. The document purports to come from “the whole community of the realm of Scotland”; its skilful rhetoric reaches a patriotic apogee in linking fealty to the current king (Robert Bruce) with a pledge of readiness to “drive him out as our enemy and a subverter of his own rights and ours” were he to allow the kingdom’s subjection to the English.

This emphatic redrawing of the governing compact extended the Magna Carta, and added a taste of the incipient nationalism also evident then among the Flemish and Swiss. Many arrows having been fired and sheep skinned, 1320, it could be said, trumped 1215. That is not to diminish the Magna Carta, and what the Glasgow professor William McKechnie, in a meticulous study in 1905, called its “clear enunciation of the principle that the caprice of despots must bow to the reign of law.” Nor is it to inflate the Declaration of Arbroath (as the 1320 letter is conventionally called). But the contrast is another reminder that there are distinct if overlapping constitutional antecedents in these islands (as in Europe as a whole), which are open to revised readings in periods of extended political flux.

The debate prior to Scotland’s independence referendum in 2014 highlighted a quietly momentous one: shared recognition that sovereignty in Scotland resides with the people, who thus now hold the future of the United Kingdom as a whole in their hands. That continues to reverberate. Scotland’s first minister and SNP leader Nicola Sturgeon visited Brussels on 2 June to press the case for a “double majority” provision: “where the UK can only leave the EU, if each nation of the UK votes to leave.” Thus, any majority vote to leave the European Union should not bind Scotland if (as is likely) most Scots opt to stay. London dismisses the argument, but its federalist logic – what a century ago was called “home rule all round” – may prove to be the United Kingdom’s last trench before the vista of independence reappears, this time for real.

Political and intellectual reality is now catching up with the “four-nations history” heralded in the 1970s by the New Zealand–raised scholar J.G.A. Pocock and developed by Hugh Kearney. It’s no paradox to say that another sign of this is the publication of Robert Tombs’s vast (1000-page) masterpiece, The English and Their History, whose learned, judicious narrative is illuminated by the decision “to make memory and its creation an inherent part of the story.” The Magna Carta is but one episode that crystallises Tombs’s attention to “what a vast range of people, for a great variety of purposes, have recorded, asserted and believed about the past.”

The post-election “constitutional moment” needs such all-round perspectives – with all their ambiguity – far more than it does the endless partisan appropriation of the past that is such a stifling and enfeebling feature of Britain’s public life. Magna Carta belongs to a many-sided and still unfolding history which has no foreordained outcome. 2020 and 2025 are just around the corner. Between now and then, this anniversary-soaked country will be forced to paint a new layer on the old canvas. •