Liberty Matters

Magna Carta in 2015

Does Magna Carta mean nothing to you?  Did she die in vain? That 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?--Tony Hancock
In 1694 James Tyrrell embarked on the composition of a General History of England intended to establish beyond question that England had possessed an ancient constitution embodying principles of liberty, no matter how much the disasters of the intervening centuries and the specious arguments of Royalist historians had obscured the fact.  Tyrrell would drag into the daylight what other historians of England had shamefully neglected, namely “the Ancient Saxon Laws and Original Constitutions of this Kingdom.”[28]
However, by the time Tyrrell had reached his third volume, the testimony of the past no longer seemed to be either so straightforward or so necessary.  The ancient constitution itself now seemed “dark and perplexed.”  And did the political arrangements of the Saxons really have much relevance to the very different challenges that confronted Englishmen at the dawn of a new century?  Perhaps, as Tyrrell conceded, the original constitution of the kingdom was more “a Question relating to Antiquity, than to the present Constitution of the Government.”[29]
Tyrrell’s soberness at the end of his historical labors is worth bearing in mind as we consider Magna Carta after eight centuries and so think about English historical-mindedness.  Justin Champion quotes Alan Ryan’s observation about the English tendency to confuse longevity and legitimacy.  He might equally have invoked Burke, who in 1790 singled out this habit of mind as the palladium of English political life:
We wished at the period of the Revolution, and do now wish, to derive all we possess as an inheritance from our forefathers.  Upon that body and stock of inheritance we have taken care not to inoculate any cyon alien to the nature of the original plant.[30]
But what does this English preference for inheritance over invention mean in practice?  Not, surely, that English political institutions are immobile, but rather that they must at least seem to be grounded in the past.  This seeming could shade into sleight of hand.  Certainly Burke sails close to the moral wind when he praises Lord Somers for his deceptive rhetoric in the Convention debates of 1689:
In the very act, in which for a time, and in a single case, parliament departed from the strict order of inheritance, in favour of a prince, who, though not next, was however very near in the line of succession, it is curious to observe how Lord Somers, who drew the bill called the Declaration of Right, has comported himself on that delicate occasion.  It is curious to observe with what address this temporary solution of continuity is kept from the eye; whilst all that could be found in this act of necessity to countenance the idea of an hereditary succession is brought forward, and fostered, and made the most of, by this great man, and by the legislature who followed him.[31]
Our desire for the past to corroborate the present is born outside the boundaries of historical study, and so historians are regularly outraged by the political purposes which the past is made to serve.  This only goes to show that (in the words of Arnaldo Momigliano) “historians are a rather marginal by-product of history.”[32]
When in 1237 Henry III confirmed in perpetuity the liberties enshrined in the Charter, what had begun as an interpretation of custom – as an attempt to reach back and restore the liberties enjoyed by Englishmen during the reigns of Edward the Confessor and Henry I – had been converted into something else.  The Charter was now fundamental and inalienable law, limiting on and superior to the crown; and it came gradually to be revered as the source of a body of ancient rights and liberties that were the birthright of the English people.
Over the years the Great Charter came to assume a variety of guises and to play a number of roles in the struggle to preserve individual liberties against the incursions of overweening power, whether of a monarchical or a more anonymously statist complexion.  The Charter began life in the 13th century as an instrument of baronial ascendancy over the Crown.  But the articles which served that narrow purpose were gradually eclipsed in importance by those other articles of (in Hume’s words) “a more extensive and more beneficent nature,” the inclusion of which the barons had tolerated as the price of associating “the inferior ranks of men” to their essentially narrow and partisan cause.[33]  It was these articles – articles promising freedom of movement, freedom from arbitrary and exorbitant punishments, prompt and due legal process, entitlement to judgement by one’s peers – which gradually assumed greater prominence as the public importance of the Charter’s mitigations and explanations of the feudal law waned.
Although the Charter declined in importance during the 14th and 15th centuries, it revived dramatically in the late 16th and early 17th centuries in the hands of Sir Edward Coke, who boldly claimed that the Charter was declaratory of the principal grounds of the fundamental laws of England, and who deployed it as a weapon against the principles and policies of Stuart government.  But the great constitutional crisis of the mid-17th century exposed Coke’s interpretation of the Charter to attacks from two different directions.  On the one hand, thinkers such as Filmer and Hobbes undermined the notion of a “higher,” or “fundamental,” law binding on subsequent governments.  On the other, some of the more radical political thinkers thrown up by the Civil War found the protection offered by customary law less compelling than the claims to liberty which could be erected on the basis of abstract natural rights undergirded by reason and equity alone.
After 1660 the Charter was attacked on historical grounds by the defenders of the prerogative of the restored monarchy.  In his Complete History of England (1685) Robert Brady deplored and despised the fact that “in spight of Truth and Matter of Fact, we find nothing in our Common Histories of these Times, but the Brave Feats performed by the English for their Fundamental Rights and Liberties.”[34] Sir Henry Spelman and Brady himself re-described the Charter as essentially a feudal document, intended to serve the interests of the magnates and therefore intended to bring about an abatement of the rigors of feudal tenures.[35]
In the following century Cokean reverence for the Charter was to some extent revived, but sat uneasily alongside the insights produced by the superior historiographical techniques of Spelman and Brady.  The result was a kind of historical “doublethink” which can be discerned in the work of Hume, Burke, Blackstone, and even Bentham.  Over time, and notwithstanding the critiques to which it had been subjected, what the Charter had been originally intended to achieve by the turbulent barons who had stood up to their king at Runnymede became less significant than the uses to which it had been put by later generations.  It came to symbolize the equation of law and liberty.  It embodied the Englishman’s belief that the law of the land protects, rather than restricts, his freedom.  And it offered implicit criteria against which official action could be assessed and judged.
When he was puzzling over men’s attachment to patriarchalism, Locke suggested that it was the inheritance of property which had disposed men’s minds to the mistaken belief that political authority was transmitted in the same manner.  This had created “an Opinion, that there was a Natural or Divine Right of Primogeniture, to both Estate and Power; and that the Inheritance of both Rule over Men and Property in things, sprang from the same Original, and were to descend by the same Rules.”[36] The example of Magna Carta shows that this mental disposition towards conceptualizing politics under the rubric of inheritance might also work in the opposite direction.  It might furnish men’s minds with a set of ideas relating to liberty and justice which appear to have the ratification of time, even though the uses to which the original event is put by later generations can have no possible point of genuine contact with the intentions of the original actors.
In Miroslav Holub’s poem “Brief Reflection on Maps,” a group of soldiers who get lost in the Alps eventually find their way back to their companions.  When they return to camp, however, it is noticed that the map they have been relying on is actually a map of the Pyrenees.  It was the thought of having a map which emboldened the soldiers to keep going, even though the map in fact bore no relation to the terrain through which they were moving.[37]
Magna Carta is also in this sense a “wrong map.”  Academic historical understanding will always chip away at the inspirational power of certain episodes in the past.  But such critiques expose only more clearly that inspirational power.  As Justin Champion’s article shows, even today people throughout the world are determined to prove that, in Tony Hancock's brilliant words, the brave Hungarian peasant girl Magna Carta did not die in vain — whatever academic historians may mutter to the contrary.
[28.] James Tyrrell, A General History of England, as well Ecclesiastical as Civil, vol. I (1696), vi.
[29.] James Tyrrell, A General History of England, as well Ecclesiastical as Civil, vol. III (1704), “Preface to the Appendix,” iii and v.
[30.] Edmund Burke, Reflections on the Revolution in France, in The Writings and Speeches of Edmund Burke, vol. VIII, “The French Revolution 1790-1794,” ed. L. G. Mitchell (Oxford: Clarendon Press, 1989), 81.
[31.] Ibid., 69.
[32.] Arnaldo Momigliano, “The Origins of Universal History,” Creighton Lecture, University of London, 1980-81, published in Annali della Scuola Normale Superiore di Pisa, serie III, vol. XII, no. 2, 533-60, quotation on 534.
[33.] David Hume, The History of England, 6 vols. (Indianapolis, Ind.: Liberty Fund, 1983), vol. I, 444.
[34.] Robert Brady, A Complete History of England (1685), sig. B1r.
[35.] Sir Herbert Butterfield, “Magna Carta in the Historiography of the Sixteenth and Seventeenth Centuries,” The Stenton Lecture 1968 (Reading: The University of Reading, 1969), 22.
[36.] John Locke, Two Treatises of Government, ed. Peter Laslett (Cambridge: Cambridge University Press, 1990), 209; Book I, § 91.
[37.] I am grateful to my daughter Kate Womersley for drawing my attention to this poem.