Posted: November 12, 2015
A review of Magna Carta, by David Carpenter
Magna Carta: A Very Short Introduction, edited by Nicolas Vincent
Magna Carta: The Foundation of Freedom, 1215-2015, by Nicolas Vincent
Magna Carta: Muse and Mentor, edited by Randy J. Holland
Magna Carta and the Rule of Law, by David Barstow Magraw, Andrea Martinez, and Roy E. Brownell II
une 2015 marked the 800th anniversary of the signing of England’s Magna Carta. To many Americans, the considerations justifying its disregard form a long list. Unlike the Declaration of Independence, there is nothing explicitly philosophical about it: no propositions about human nature, natural law, or natural rights; no first principles of political life; no account of the ends of human association; and hardly even any legal principles visible to American eyes without straining. Unlike our Constitution—in effect for 226 years with only a few clauses repealed or defunct, and a mere 27 amendments—Magna Carta is generally said to have only three clauses that are still good law in England.
To be sure, the English celebrated its birthday with great pageantry. But then, they had celebrated the disgraced Richard III three months previously when they reburied his bones in Leicester Cathedral. The circumstances of Magna Carta’s origin—not a gathering of representatives of the people or a social contract among social equals, but a sort of peace treaty among king, bishops, barons, and knights—hardly resonate in America, a nation lacking a pre-democratic age.
And what would history prove, anyway, to modern men of any nation who look to science and the present rather than the past for wisdom and authority?
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Nevertheless, the anniversary has called forth numerous volumes of scholarship and commemoration; and there is quite a bit of consensus these days about Magna Carta’s history and its continuing importance. Long before 1215 the English king swore an oath at his coronation to keep the laws and do justice. As the late historian J.C. Holt noted in his classic Magna Carta (1965), when Henry I ascended to the throne in 1100, he introduced an elaborate coronation charter, which detailed some of the laws and liberties he swore to preserve. When, after continued exactions of money and the loss of most of his domains in France, King John’s relations with his bishops and barons deteriorated, the 1100 charter served as a template for demands that the king live up to his predecessors’ commitments. Over the course of several months in late 1214 and early 1215, a series of similar documents was produced, interpreted by historians as drafts for negotiation between rebel barons and the king’s advisors. Finally, somewhere between June 15 and June 19, John and the nobles, meeting at Runnymede near London, produced a common text. During the following days, copies were made, sealed, and sent to the various counties of the realm, where they were read and often deposited for safekeeping in abbeys or cathedrals. This Charter of June 1215, written in Latin in what were later counted as 63 paragraphs or “chapters,” is the one whose anniversary we now mark.
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But the story is much longer, and stranger. Within a few months, claiming he had signed the pact under duress, King John appealed to Pope Innocent III—who had previously excommunicated him but then received him back into the Church in 1213—and got the Charter declared null and void. At this point, war between John and his barons broke out, the latter inviting Prince Louis, heir to the French throne, to come to London with his forces and join the fight. John fought the rebels for a year before his death (of natural causes) in October 1216.
With the blessing of the papal legate, the king’s loyal counselors, many of whom had been named as advisors in the 1215 Charter, then reissued Magna Carta in the name of the new king Henry III, who was only nine years old. Because this gesture of reconciliation quelled the rebellion, the French withdrew. The Charter was reissued in 1217, now alongside a separate, shorter charter concerning the law of the king’s forest. This “Magna Carta”—given that name for the first time, presumably because it was greater in length than the Forest Charter—was shorter than the 1215 version, including only 37 chapters, mostly taken from before. Its most notable omission was the lengthy security clause, which had formed a committee of 25 barons to hold the king accountable, a mechanism that collapsed into the renewed rebellion. Henry III reissued Magna Carta in 1225 upon turning 18. This fourth version was eventually placed at the head of the English statute book—one says “eventually” because there was as yet no regular English parliament and so no modern statutes, both developing later in the 13th century.
Magna Carta was reissued in 1297, apparently in the presence of a parliament, and thereafter a tradition emerged among English kings of confirming Magna Carta but not reissuing it. The establishment of Magna Carta, then, was a process taking 82 years, spanning what are often called the High Middle Ages, the period that saw the great cathedrals of Notre Dame and Chartres completed, Thomas Aquinas laboring at his famous theological corpus, and Marco Polo voyaging to China.
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Among the books published in advance of the 800th anniversary, David Carpenter’s Magna Carta is the most thorough and detailed. A professor of medieval history at King’s College, London, Carpenter is like a tour guide who wants to tell us everything he knows about Magna Carta and its world. He discusses and compares the four versions, and helpfully reprints the Charter on facing pages in the original Latin and his own English translation.
His immersion in the past does not preclude some unfortunate presentism. Carpenter’s first page informs us that Magna Carta discriminated against both peasants and women, inviting readers to feel both edified and proud that 21st-century sensibilities are more democratic than the 13th century’s. His discussion of the era’s social life is rich and informative, however. By the end of the book he shows that the widows of aristocratic husbands, the subject of some of its earliest clauses, did indeed benefit greatly and immediately from Magna Carta. I’ve never seen a more patient summary of all the era’s different English offices and courts, the different ranks of nobles, and the different kinds of taxes.
Carpenter portrays John as a monarch who mostly continued the policies of his father, Henry II, but, being somewhat more assertive about taxation and a great deal less competent at warfare, earned the contempt of his people, who united against him. Though immersed in the details of the road to Runnymede, among other things, Carpenter nevertheless gets the big picture:
The Charter’s impact in the thirteenth century was actually very great. Its arrival does mark a “before” and “after” in English history.… The king was now subject to the law. This idea had, of course, a long pedigree, but now its truth was proved in a document of unimpeachable authority and overwhelming fame.
Nicholas Vincent’s Magna Carta: A Very Short Introduction, honors its subtitle’s promise: in only 109 pages of text, it offers insights not available elsewhere. Vincent pays careful attention to the Church’s role in setting the stage for Runnymede, negotiating the document, and then dealing with its consequences. A fine map of the Angevin Empire, the English kings’ holdings in France, makes clear at a glance a geopolitical reality modern readers accustomed to nation-states find incongruous. Vincent also goes beyond Carpenter in a chapter that notes Sir Edward Coke’s widely acknowledged revival of Magna Carta in the 17th century, then its use as a “totem” in subsequent waves of British reform, even as most of its specific clauses were repealed.
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Vincent repeats part of his tale in his magnificent, edited coffee-table book, Magna Carta: The Foundation of Freedom, 1215–2015, discussing early English law and the story of Magna Carta through 1297. Worth the price are the illustrations: details from illuminated manuscripts, photographs of castles and cathedrals, royal seals and coins, and documents reproduced so finely that one can often read the Latin script. Other scholars’ chapters concern its subsequent importance—including its role in the late Middle Ages, as a “liberty document” from Coke to William Blackstone, in America, and in the 19th century. Although the historians often show wisdom and equanimity discussing the past, Foundation of Freedom unfortunately turns shrill when considering the present and future: its concluding chapter, written by a human rights jurist, focuses mostly on the sins of the United States in the fight against Islamic terrorism. Did readers really need to be lectured about the hooded figure from Abu Ghraib, without mention that those responsible for the outrage have long ago been tried and convicted? But I forgave even that once I caught the sly British wit that included a big color picture at the chapter’s start of President Obama signing an order on his second full day in office ordering the closure of Guantanamo: A new King John!
Magna Carta: Muse and Mentor, likewise an edited collection of essays on glossy paper, was published earlier this year in conjunction with an exhibit at the Library of Congress. The treatment is eclectic, if not eccentric: the authors discuss Magna Carta in the dictionary, at the 1939 New York World’s Fair, in a John Philip Sousa march, and in a Jay-Z album. There are also, however, fine chapters on the document’s legal effect in its time; its reception in America; and its appearance in, and later disappearance from, American state constitutions. An essay on trial by jury sets the record straight: Coke and Blackstone mistakenly thought it was a right secured by Magna Carta. In fact, it had more to do with Pope Innocent III’s Fourth Council of the Lateran, also in 1215. A chapter on taxation shows how King John’s abuse of it led directly to the Charter. The contributions are uneven, though the reflection on religion and the Charter is good.
Since the time of Coke, Magna Carta has always belonged in a special way to the lawyers, and the American Bar Association did not overlook the anniversary, issuing a volume portentously titled Magna Carta and the Rule of Law. If you don’t like depending on the internet for documents, its appendices are splendid: the Coronation Charter of Henry I; the Articles of the Barons, a list of demands given to John; the versions of 1215, 1216, 1217, and 1225; even the papal bull annulling the original. Except for a few articles at the outset, the authors write on contemporary topics with reference to Magna Carta. Even when competently done, as on executive power or habeas corpus, they strain a bit to find the connection between contemporary issues and old law. There is a fascinating essay on canon law and its influence on 13th-century legal developments. A somewhat eccentric piece on religious liberty—which begins with the ancient Buddhist Emperor Ashoka—is worth reading, if only for its attention to the Jews, to whom Magna Carta is decidedly less than magnanimous, and to the changed meaning of religious liberty since 1215.
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Taking these books all together—they constitute only a sample of what is being published for the anniversary—is there a way of garnering something valuable for our own time by reflecting on the meaning of Magna Carta? Five observations are in order.
First, Magna Carta stands at the headwaters of Anglo-American constitutionalism, but pays homage to the specific traditions it inherited and acknowledges tradition in general as a form of law and liberty. The Charter rarely innovates. Rather, it promises to restore, often to the time of John’s father, Henry II. The famous clause that promises not to condemn any free man except by the judgment of his peers or the law of the land supposes that law already in existence. In April 1215 John had first allowed London to elect its own mayor, but there is no mention of this innovation in Magna Carta, wherein the citizens of London are promised their “ancient liberties” and “free customs.” This reproduces the distinctive attitude of common law, always taking tradition as a baseline, always looking for precedents, always presuming—albeit rebuttably—the wisdom of the law that had been handed down. What could be more different from the suppositions held today by many lawyers and most law professors? They treat the fact that a rule is traditional as a presumption against it, an indication of prejudice rather than of wisdom born of experience.
Second, Magna Carta’s law appears alongside recognition of the independent authority of religion—the “freedom of the Church,” promised in the first chapter. Stephen Langton, the Archbishop of Canterbury from 1207 to 1228, was an important Biblical scholar, responsible for the modern division of the Bible into chapters. He had helped revive Henry I’s coronation charter, may have authored parts of Magna Carta itself, and is thought to have been critical to its negotiation. Langton advised the king, whose first aim in issuing the Charter is announced as “the salvation of our soul, and the souls of all our ancestors and heirs,” adding that he acts “unto the honour of God and the advancement of his Holy Church,” and only then for “amendment of our realm.”
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Whatever else might be said about the differences across the ages on the matter of religion, the responsibility of the king expressed in Magna Carta is not only to the realm but also to God and the Church. At the same time, however, secular rights and political powers are discussed without religious dictation. That the Christian Church, free of the state, establishes the basic aims of society and inculcates its basic virtues was probably taken for granted by most of those who made Magna Carta. Nor would it have been forgotten by contemporaneous readers that John’s father had provoked, though later repented, the murder of his friend and Langton’s predecessor in the see of Canterbury, Thomas Becket.
Third, law is often treated today as autonomous, enforceable by judges without reference to the political will that animated its making and enforcement. Magna Carta, though forced on John by his barons and reissued by his successors for political purposes, nevertheless pays homage to the king’s authority as the source of law. It takes the form, after all, of a royal grant, even in versions confirmed in Parliament. By its terms, the king promises not to break old customs or otherwise transgress the law. Much of his prerogative remains untouched, however, and his affirmative responsibilities to keep the peace and ensure justice remain clear. Magna Carta is an eminently practical document, written by and addressed to practical men who exercise authority in the world of affairs. Justice ought to inform their exercise of judgment, but it cannot replace it. Justice is a virtue, not a system.
Fourth, the king has authority, but he rightly rules with the assent of his subjects. As expressed in the final chapter of the 1215 original, both king and barons swear to observe all things in the Charter “in good faith and without evil subtlety.” The Charter is given by the king, but witnessed by the realm. This is not yet the world of Thomas Hobbes and John Locke, where authority comes exclusively from consent, “there being no obligation on any man which ariseth not from some act of his own,” as Hobbes put it. Instead, authority flows from God to the king, under the watchful eye of the Church. The authoritative ends that law serves are written in the book of nature.
Still, as in Aristotle, what distinguishes a king from a tyrant is that the former rules with, and the latter without, his subjects’ assent. Rule and law are based in reason, but all men have some part in reason and so can be rightly ruled only through their reason. One does not yet find in Magna Carta the promise that new law will be made only in Parliament, nor that there will be no taxation without representation. But the seeds are there, both in the making of Magna Carta and in its 12th chapter: “No scutage or aid [two kinds of taxes] shall be imposed in our kingdom, unless by the general council of our kingdom.” John himself complained to the pope that his assent had been coerced, but with the reissues by his heirs, that point became moot.
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Finally, Magna Carta, like the common law as a whole, leaves room for change and improvement. Although basic liberties are promised to the Church, the barons, and to all free men forever, there is no fiction that all the laws are sacred or that they descend directly from the Almighty. The Charter is the king’s grant, and much of what it grants is English custom. The common law courts, for example, extending the king’s law throughout the realm and often displacing the manor courts of the great lords, had been established only in the reign of Henry II, a half-century before. Even if the law they applied was held to be immemorial, the run of the king’s writs was relatively new, and the role of judges and juries in enforcing them was still being developed.
Thus, the praise of tradition was not the antithesis of innovation. Every tradition has a beginning, clear in retrospect if not at the time. Indeed, both tradition and innovation had the same principle, namely the authority of reason. Tradition embodied the past discoveries of reason, while innovation reflected the judgment of reason concerning what needs to change. Precisely when traditions can be adjusted and corrected, and bad customs abandoned, may we reasonably presume that tradition transmits what is good, not simply what is old.
Eight hundred years was the lifespan of Sparta, which for many in the classical world was the model republic, evidence of human legislation’s capacity to discipline the unruliness of human nature by teaching men virtue and devotion to the common good. Our constitutionalism was formed by a different sensibility—devoted to learning and open to charity as well as courage, dedicated to liberty in the individual as well as in the state—and the heritage of Magna Carta is only a part of it. Nevertheless, to note that Magna Carta has achieved the lifespan of the laws of Lycurgus is to recognize a great achievement. There were, after all, various other charters made in the same era on the European continent, all now long forgotten. But it is also a sober reminder: our liberties are as mortal as our lives, and will be preserved only if they are understood, honored, and loved.