Liberty Matters

Comment on Justin Champion


Justin Champion advances a powerful case for treating Magna Carta as a liberty document, directed to all free men.  In the thirteenth century, its beneficiaries comprised a limited elite of the lawfully 'free': perhaps as few as one in ten, or at most one in five, of the adult male population.  By the sixteenth century, with the decline of serfdom, this had been extended to include all adult males, and arguably all adult women.  Since then, and in the words of the UNESCO citation, Magna Carta 'has become an icon for freedom and democracy throughout the world'.  Professor Champion notes that clause 14 of the 1215 Magna Carta, by demanding counsel before the grant of any new tax, in effect introduced the idea of a popular assembly, leading in due course to Parliament, and ultimately to that rallying cry of the free-born American colonists: 'No Taxation without Representation'.  Certainly, there seems to be universal agreement that Magna Carta clauses 39 and 40 (clause 29 of the 1225 reissue, still current in English law today) establish the principle of 'due process'.   Under this, the ruler or sovereign, and the administration conducted in the sovereign's name, are brought within the rule of law. 
There is a natural tendency to assume here that the 'liberties' (plural) referred to in the text of Magna Carta can be equated with the 'liberty' to which traditions of natural law, the framers of the American Constitution, or modern human rights activists so confidently appeal.  This would include the 'liberty' proclaimed amongst the 'unalienable Rights' defined by the 1776 American Declaration of Independence as the right to 'Life, Liberty and the pursuit of Happiness'.  Certainly, Magna Carta has featured high amongst the totems of political rebels, from the 1260s or 1290s, all the way through to the new 'Barons' Wars' of the 1640s, the Chartist 'uprising' against Victorian oligarchy, or Mexico's Zapatista Army of Liberation in 1994. 
As Professor Champion further points out, Magna Carta has tended to be read as all things to all men (and women).  Here it commands allegiances across the political spectrum, from its use as a defense of tradition and an 800 year-old line of constitutional monarchy, through to its use by environmentalists, republicans, or cyber-anarchists, keen to break free from state or societal control.  Legitimacy here comes from longevity.  The laws of unintended consequence dictate that a document that has very little to do with modern ideas, either of democracy or freedom, has somehow been canonized as if it were the foundational creed of liberalism, socialism or green republicanism. 
So far, I am in agreement with Professor Champion.  Champion's instinct, however, pursued in the main body of his essay, is to demand a continuing 'imaginative reinvention' of Magna Carta.  Only thus, he suggests, can the document and its legend be fitted to the needs of posterity.  My own instinct, on the contrary, would be for less imagination and more solid fact. 
Magna Carta has suffered 'imaginative reinvention' ever since it was first granted in June 1215.  Within only a decade of its issue, the text of the Runnymede charter had been revised, reinvented and in many cases deliberately rewritten by contemporaries who had little interest in what had happened at Runnymede but a great deal in establishing that Magna Carta, in one way or another, chimed with their own particular needs or obsessions.   It is the responsibility of the historian to establish the reality of events, and thence to measure the gulf between reality and perception.  In the case of Magna Carta, this gulf emerged so early, and has grown so wide, that our duty is surely to expose the myths, not simply to peddle them.
As Champion points out, in 1971, Darcus Howe and his lawyers appealed to Magna Carta's insistence on trial by peers, to argue for trial by those of the same color.  What he does not allow here is that this was a restrictive interpretation that had already been attempted in the 1230s.  It was then that various of the greater barons in England sought to argue that 'peers' meant the great aristocracy, as in the modern House of Lords, and that therefore the rich and powerful should be tried only by those of similar wealth and power.  If racial discrimination was at stake for the Mangrove Nine, then it has to be confessed that Magna Carta clauses 50 and 51 (calling for the explusion of all 'alien' knights and constables) appear to encourage prejudice rather than to prohibit it.  Lady Justice Arden's call, meanwhile, for a judiciary no longer drawn from the 'establishment' but from the liberal majority, seems to me directly to echo demands in the seventeenth century, that judges all be good Protestants, or in the eighteenth, that judges not only hate the Pope but serve the King.  In all such instances, what is being demanded, surreptitiously or openly, is discrimination by the executive intended to interfere with the independence of the judiciary.  As for equality under the law, clause 20 of the 1215 Magna Carta, with its careful distinction between free men, merchants, and villeins, was used in the eighteenth century to argue that inequality was the natural state of man properly instituted, especially in those parts of the British Empire where the right to self-government and slave ownership went hand in hand. 
Having established their own constitutional assembly, in an act of 1728 celebrated as Jamaica's 'Magna Carta', British Jamaicans obtained confirmation of the legality of all previous enactments by their assembly together with the right to be governed 'by all such laws and statutes of England as have been at any time esteemed, introduced, used, accepted, or received as laws of this island'.  These most definitely did not include equality between slave and slave-owner.  Inequality, between the propertied and the propertyless, as between the independent and dependent, remained hard-wired into the British constitutional and imperial systems, however nostalgically such systems looked back to Magna Carta as a foundational rallying point.  Here liberty and inequality were paired in ways that made it very hard for free-born Englishmen to stomach the later American or French pairing of liberty and egality.
Parliament, in the Whig tradition, saw itself in the eighteenth century as embodying everything that Magna Carta had been intended to procure.  Through Parliament the propertied and those 'of interest' dispensed justice to the unenfranchised majority.  William Blackstone, the greatest modern authority on Magna Carta, was one of the MPs who called loudest for the expulsion from Parliament of John Wilkes, denounced as a demagogue and hero of the mob.  The direct connection between Magna Carta, the Whig settlement of 1688, and Parliamentary sovereignty made Magna Carta itself a very difficult pill for the American revolutionaries to swallow.  How could Magna Carta, itself conceived of as an act of ‘parliamentary’ resistance to a tyrant king, be used to contest other such acts - the Sugar Act (1764), the Stamp Act (1765), the Declaratory Act (1766), the Townshend Acts (1767), or the Coercive Acts (1774) - all of which seemed to emanate from Parliament rather than from monarchy?  To most native-born Englishmen, indeed, the idea of defying Parliament in the name of Magna Carta appeared a logical absurdity. 
Only later, when George III revealed himself just as intractable as the politicians, could Magna Carta be invoked in America as the birth-right of the free.  Even then, following American independence, the tendency to deny the liberties of indigenous or slave populations was accentuated rather than resisted in those of the new United States that now not only deliberately expelled their native inhabitants but imported African slaves to work their land.  These were often the States in which 'English' traditions, including Magna Carta, were most loudly proclaimed.  Virginia, in 1606, was the first of the American colonies to receive Magna Carta as part of its royal charter of liberties.  As the plaque at Jamestown still reads, 'Here the Common Law of England was established on this continent ... (with) Magna Carta, the cornerstone of individual liberties'. Virginia was also, in 1861, one of the first states to secede from the Union.
I am not for a moment here arguing that Magna Carta supplies a natural defense of slavery or secession.  On the contrary, those who have argued in this way have distorted the meaning of the charter with just as much anachronism as the Levellers of the seventeenth century, the Chartists of the 1840s, or the Zapatistas of Mexico.  What I am suggesting is that that historian's role is to tease out such anachronisms, not to perpetuate them. 
For all that is said about Magna Carta, very often by people who have never read it, Magna Carta itself says nothing about democracy, about trial by jury, about the presumption of innocence, let alone about Habeas Corpus.  Clause 14 of the 1215 charter, interpreted by some as an embryonic striving after what was later to become Parliament, survived as law in England for less than a dozen weeks.  It was dropped after 1215 from all subsequent reissues.  Certainly, the 'liberties' to which Magna Carta refers had very little in common with that which today's liberals would regard as freedom under the law.  The liberties of 1215, like the 'liberty' of the archbishops of Canterbury, or the 'liberty' of the earls of Essex, were far more akin to today's great multinational franchises: rights and customs associated with property ownership, guarantied by possession and long use.  In other words, they much more resemble the vested interests of those corporate Leviathans against which today's cyber warriors or environmentalists seek redress.
It is one of the wonderful things about Magna Carta that where one most expects it to be specific (trial by jury, Habeas Corpus) it is most vague, and where one would most appreciate vagueness (fish weirs, French constables, haberjets, and ells within the selvages) it is most specific.  It is this, perhaps, that explains its Protean survival.  If only, the liberals might argue, clause 39 had spelled out the precise meaning of 'judgment by peers and the law of the land', then there might not be such dispute as to the usefulness of this clause in defense of human rights.  If the charter's framers had been more specific, a conservative might reply, then clause 39 would be as filled with feudal specifics as the rest of the document and the whole lot would by now have been consigned to the dustbin of redundant law. 
In writing of Magna Carta we need to distinguish myth from reality, the Wizard of Oz from his box of tricks.  To allow any particular political party to claim a monopoly of the charter would be to defeat its still valuable purposes.  By enshrining the myth that 'liberty' and 'freedom' are fundamental birth-rights of the English-speaking world, Magna Carta has placed a powerful brake upon tyranny and supplied incentives to the spread of values that its original framers might have found not only alarming but positively repulsive.  By promoting a royal act of grace, King John's 'Great Charter', as the point of genesis for all subsequent English law, Magna Carta has, ironically enough, helped confirm the sovereign authority of the very dynasty whose powers it was intended to restrict.  The Queen, the Prince of Wales, and a whole menagerie of minor royals, can participate in the celebration of Magna Carta's 800th birthday, confident that the charter itself, as a royal act, even as the act of a 'bad' dead king, supports rather than undermines the institution of monarchy. 
Meanwhile, radicals should no more be allowed to appropriate Magna Carta than those New Hampshire Republicans who, in 2012, sponsored a bill proposing that a clause of the ‘original’ Magna Carta of King John be cited in every constitutional resolution passed through the state legislature.  In seeking such things, the reactionaries of New Hampshire no more cared to be reminded of clause 10 of the 1215 Magna Carta, than the Zapatistas were inclined to recall Magna Carta clauses 33 or 54.  It is the role of the historian to deliver such reminders.  Magna Carta is both the piece of tattered sheepskin issued by King John in 1215, and a beacon of freedom and liberty feted around the world.  The document is not the myth , nor is the myth the document.  Long may this distinction live.  Or as King John might have put it, in his own native tongue: 'Vive la difference!'.