Anthony Musson, ‘Magna Carta – the Foundation of Freedom’

22 May 2015

Anthony MussonAnthony Musson is Professor of Legal History and Director of the Bracton Centre for Legal History Research at the University of Exeter. He is a contributor to the Magna Carta Trust’s official commemorative volume Magna Carta: The Foundation of Freedom, 1215-2015, ed. Nicholas Vincent (London, 2015) and has published extensively on legal history and legal culture including Medieval Law in Context: The Growth of Legal Consciousness from Magna Carta to the Peasants’ Revolt (Manchester, 2001) and (with C. Stebbings) Making Legal History (Cambridge, 2012).

In January 2015 the Exeter-based Express and Echo ran a story (also frontline news in the Daily Mail): Defiant hoarder vows to fight council’s clear-up order… using the Magna Carta! Threatened with a notice from the council to declutter his house, a Plymouth pensioner, Arthur Watson, claimed protection of the Great Charter on the basis that his rights had been breached since (in his words): ‘The Magna Carta states that no free man may have his possessions taken without due process and the judgement of his peers.’

Magna_charta_cum_statutis_angliae_p1This year we are celebrating the 800th Anniversary of King John’s accord with the English barons, the treaty sealed at Runnymede on 15 June 1215 that became the ‘Charter of Liberties’. Mr Watson’s perception of the modern relevance and value of Magna Carta, however misguided in precise legal terms, not only bears witness to its continuing influence, but also its place in the ‘popular’ imagination. This is in spite of the fact that the Charter’s binding provisions lasted a mere 10 weeks before it was annulled by the Pope upon John’s application. After John’s death in October 1216 it could have remained a dead letter, but for its resurgence as a tool of royal propaganda, revised and reissued first in November 1216 and then definitively in 1225, promoting the future good governance of the young Henry III. The rolls of parliament and various statutes, ordinances and treaties of the period demonstrate how from the thirteenth century onwards Magna Carta was enshrined in the lexicon of political/constitutional debate between the king and his subjects.

While it is often perceived only as a grand constitutional document, the Great Charter was more than a brake on the king’s unreasonable financial exactions and arbitrary exercise of justice. Although it contains a curious mixture of clauses, some of which appear very obscure today, its relevance not just to the upper layer of society, the barons and knights, but to ordinary people in medieval England, can be observed in the way they strategically appealed to Magna Carta in petitions and litigation as an authoritative reason for the king to intervene and remedy their complaints. Not surprisingly, from an early stage Magna Carta played an important part in legal education. Moot questions on areas of law espoused by the Great Charter were favoured by lawyers from at least the 1340s, while readings (lectures) on individual chapters of the ‘laudable statute of Magna Carta’ by senior members (‘benchers’) of the four Inns of Court also became common fare from around the mid fifteenth century.

MC - English_Bill_of_Rights_of_1689

Declaration of Rights, 1689

Magna Carta had a strangely low profile during the controversies of the sixteenth century. Following Henry VIII’s break with Rome, it was only vaguely raised in connection with the treatment of religious houses and religious persecution during the reigns of Mary and Elizabeth. It took a central role, however, in the seventeenth-century conflict between king and Parliament, as common lawyers (notably Sir Edward Coke) and parliamentarians turned to a mythical ‘ancient constitution’, a body of laws and customs supposedly surviving from pre-Roman Britain, as a defence against both James I’s and Charles I’s assertion of the royal prerogative. Although the Great Charter itself does not specify the means of retribution against recalcitrant kings, the history books are peppered with royal depositions for which Magna Carta is cited as justification. Events in the mid seventeenth century in particular proved to have more extreme consequences than the 1215-16 rebellion with the trial and public execution of Charles I. The Glorious Revolution of 1688-89, culminating in the deposition of James II, while essentially peaceful, again seemed a reprise of the rebellion against John to the extent that the settlement following William and Mary’s accession included a Declaration of Rights that was endorsed by Parliament as a new Magna Carta.

Incorporation of consent to taxation, trial by jury, freedom from arbitrary imprisonment and due process under the law in the constitutional blueprints of the emergent United States of America secured for Magna Carta a lasting influence in Anglo-American law. Arguments employing these notions have been cited pragmatically across the globe in times of political crisis and paradoxically are employed both against and in support of the authority of the state (as witnessed by the American and French Revolutions). Magna Carta was also cited throughout the nineteenth century by the representatives of ‘native’ peoples determined to share in freedoms claimed by their colonial oppressors. Elements (including ‘the right to a fair trial’) are now enshrined in documents preserving personal liberties, notably the European Convention of Human Rights and the Universal Declaration of Human Rights.

magna_carta_corbis_mugThe plethora of merchandise that has accompanied the 800th Anniversary: from Magna Carta rulers, tea towels and cushions, to i-phone cases, fudge, and even mead, may cynically be capitalising on the internationally recognised values inherent in this iconic national symbol. But spreading the gospel of Magna Carta by appreciating a good commercial opportunity has deep historical roots.

Magna Carta - BeardmoreRadical lawyer Arthur Beardmore, for example, editor of The Monitor, who was arrested for seditious libel in 1762 (a period when freedom of the press came increasingly under attack) demonstrated a shrewd eye for publicity by arranging to be arrested while teaching Magna Carta to his young son. He became a popular hero and a print picturing the event circulated widely. A copy from 1765, now in the British Museum, pictures Beardmore dutifully pointing out to his son the Latin words of chapter 29 (in the 1225 version) ‘no free man shall be imprisoned…’. A caption beneath the image, appropriately taken from the Bible (Deuteronomy VI, 6-7), reads: ‘These words which I command thee this day, shall be in thine heart. And thou shalt teach them diligently unto thy children.’

Magna Carta Wilkes teapotA friend of Beardmore’s, John Wilkes, editor of The North Briton and an outspoken MP, was imprisoned in the Tower of London a year later also for seditious libel, though later released under parliamentary privilege. Wilkes transformed his prosecution into a campaign against oppression, invoking the ‘genuine spirit of Magna Carta’, which he termed ‘that glorious inheritance, that distinguishing characteristic of the Englishmen’. Significantly, Wilkes realised not only were newspapers a powerful propaganda tool in his campaign, but so too was merchandising. Cunningly he produced an extensive range of prints, engravings, buttons, medals and even porcelain figurines, teapots and mugs containing slogans such as ‘Wilkes and Liberty’ and ‘No General Warrants’. A medal or token produced in 1763 to commemorate the infamous forty-fifth edition of the North Briton (attacking the power of the Crown) has a portrait of Wilkes on the obverse and Old Father Time with the words ‘Magna Carta’ and ‘No 45’ on the reverse thereby connecting his personal defence of liberty with the historical tradition of Magna Carta. The consumerism associated with ‘Magna Carta and liberty’ in the eighteenth century captured minds and purses in the nineteenth century, too, as demonstrated by a bottle modeling the Lord Chancellor, Henry Brougham, the person responsible for passing the Great Reform Act of 1832, which in turn is labeled (on the bottle) ‘Second Magna Carta’.

MC Lord DenningTwentieth-century British judge, Lord Denning’s pronouncement that Magna Carta is ‘the greatest constitutional document of all times’ signals the extent to which it is totemized even in the modern era. Yet Magna Carta’s history, just like its text, is a legacy of paradoxes. As Mr Arthur Watson and many others before him have demonstrated, it has become an integral part of ‘popular’ (mis)understanding of the law: a symbol of the rule of law to which everyone is entitled, even though for much of its history there have been significant parts of the community (such as women and slaves) formally excluded from its benefits. Moreover, in the pubic imagination, through a coincidence of chronology and the imperceptible hand of legal and constitutional tradition, Magna Carta and jury trial are conjoined twins. Parliamentary debate about changes to the justice system or media scares about abolition of trial by jury (as occurred when the first trial without a jury of a serious fraud case took place in 2010) always provokes an outcry with Magna Carta brandished as a symbol of legal tradition and constitutional restraint.

To what real effect though? Where is the rational arm of Magna Carta when the bombs start falling or terrorists strike or in the vicinity of Guantanamo Bay? – a question increasingly being asked by ordinary people engaging with the concept of executive power in the modern world. Amid calls for a ‘Global Magna Carta’ and even a written constitution for the United Kingdom, Magna Carta’s 800th Anniversary has significantly heightened public awareness, especially amongst young people, not just of the principles and values enshrined in the Great Charter, but also of the importance of history, especially its interpretation and contextualisation. Like the character of Montag in Ray Bradbury’s Fahrenheit 451, should we be worried or reassured? ‘So long as the vast population doesn’t wander about quoting the Magna Carta and the Constitution, it’s all right’. I think it has already started.

Further Reading

Nicholas Vincent, (ed.) Magna Carta: The Foundation of Freedom, 1215-2015, (London, 2015)

Anthony Musson, Medieval Law in Context: The Growth of Legal Consciousness from Magna Carta to the Peasants’ Revolt (Manchester, 2001)

A. Musson & C. Stebbings, Making Legal History (Cambridge, 2012).

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