Greatfully re-blogged from the Economist:
The uses of history : How did a failed treaty between medieval combatants come to be seen as the foundation of liberty in the Anglo-Saxon world?
THE great bronze doors of America’s Supreme Court are decorated with eight panels depicting seminal moments in legal history. One of them shows a cross-looking King John in a face-off with a determined baron who is leaning threateningly on his sword (right). Between them is a document onto which the king is pressing his seal.
The relief is a fair representation of the making of Magna Carta. King John was indeed angry, and the barons threatening. But both parties would surely have been astonished to know that a treaty between feudal antagonists—designed to avert civil war in the 13th century—would be celebrated 800 years and an ocean away from the moment immortalised on those doors.
It happened on June 15th 1215, in a field at [near?] Staines, now a less than lovely suburb west of London. The deal that was done there was yet another stage in a long tussle for power between feudal strong-men and their overlord. John had spent most of his financial and political capital trying and failing to hold on to bits of France. He had alienated the clever, ambitious Pope Innocent III by refusing to accept the pope’s nominee for Archbishop of Canterbury. He expelled the monks from Canterbury and the pope excommunicated him.
He had alienated the barons, too, by fleecing them and, when they resisted, did much to deserve the bad press Shakespeare subsequently gave him. When one baron, William de Braose, failed to cough up and fled to France, John took his wife and son hostage, locked them up in Corfe castle and left them there. According to a contemporary chronicler, when their corpses were eventually removed, the woman was discovered to have been chewing on her son’s cheek.
England thus became a rogue nation. The clergy were not allowed to celebrate mass. Dissidents were persecuted or fled. Big powers near and far—France, Wales, Scotland, Rome—conspired to overthrow the oppressive regime.
Faced with the threat of invasion, John made a clever move: he sued for peace with the pope. He accepted Innocent III’s nominee for archbishop and, in a scene of exquisite triumph for the pope and humiliation for the king, John knelt before the papal nuncio in St Paul’s Cathedral as the instrument of his surrender was read out before assembled barons and clergy. That did not, however, answer the barons’ grievances. The rebels gained ground and soon took London. John realised that he had to make terms with them: those terms were Magna Carta.
There was not much reason, at the time, to suspect that the document would make history. It was not a revolutionary idea for the king to issue a charter promising to play by certain rules. Henry I, William the Conqueror’s son, had published the Charter of Liberties when he came to the throne in 1100, to persuade the barons that he would behave more reasonably than his horrible brother William Rufus had done.
Moreover, Magna Carta was a failure. It had an enforcement clause that no self-respecting monarch would have stuck to—establishing a council of 25 barons with the right to seize all the king’s possessions if he broke any of the other clauses—and John evidently had no intention of doing so. A month after it was sealed, he wrote to his new friend the pope to ask for its annulment. The tactical humiliation in St Paul’s Cathedral paid off, and the pope promptly obliged.
Nor was there much in the document to interest people beyond the time and place in which it was born. John had been swindling the barons through abuse of his royal rights, so the bulk of it concerns such matters as the tax they had to pay the king in lieu of sending knights to fight for him, and the king’s rights over the barons’ heirs and widows, plus practical issues of great import in medieval times but of limited interest to subsequent generations, such as the dismantling of fish-weirs on the Thames.
A pretext for regicide
Buried beneath the “scutage”, “novel disseisin” and “darrein presentment” there were, however, some grander notions, which many historians attribute to the new Archbishop of Canterbury, Stephen Langton, a theologian trained in Paris who later sided with the barons and was sacked by the pope. Certainly, there is evidence of a sharp intelligence at work, using a propitious moment to delineate more broadly the relations between a sovereign and his subjects. Scutage—a tax to pay for war—was to be levied only with “the general consent of the realm”. And chapter 39 in the original (29 in later versions) asserts 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, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.” That prohibition earned Magna Carta its place on the Supreme Court door.
This passage did not establish the right to trial by jury, for juries were already used extensively; nor is it clear what “the law of the land” meant, since there were no statutes, only customs. The language is not original—a similar phrase appeared in the Edict of Conrad II, the Holy Roman Emperor, in 1037, and another in the second Treaty of Constance between the Emperor Barbarossa and the Lombard League in 1183. But on the European mainland the phrase disappeared into the murk of the Middle Ages, whereas in the Anglo-Saxon world it survived, to be revived and revered by subsequent generations. Why?
John “surfeited himself with peaches and drinking new cider, which greatly increased and aggravated the fever”
One reason may have been a batch of cider newly brewed by monks at Swineshead Abbey in Lincolnshire. After John reneged on the charter, Louis, son of the king of France, came to England at the barons’ invitation to take the throne. John marched towards the north, where the estates of many of the rebel barons lay. On the way, he lost his treasure crossing the Wash. The “grief of mind” this caused made him ill, according to Roger of Wendover, a contemporary chronicler; the king then “surfeited himself with peaches and drinking new cider, which greatly increased and aggravated the fever.” Shakespeare reckons the monks poisoned him. Either way, he died a week later.
John’s son Henry was nine, so one of the barons who had remained loyal to the throne, William Marshal, became regent. Unlike his newly deceased liege, he was a remarkable soldier and statesman. Already pushing 70, he led the royal troops into battle against the French at Lincoln, and defeated them. He then reissued the Charter, largely in its original form, turning a document designed to weaken the king into the monarchy’s most powerful weapon. The rebels no longer had a cause, and the rebellion died. When Henry III reissued the Charter once again on his coming of age in 1225, most of the witnesses to it were former rebels.
The second reason for the treaty’s survival was Sir Edward Coke, a 17th-century lawyer. The charter had largely disappeared from view for four centuries, but in the run-up to the English civil war it proved useful to the Stuarts’ opponents, who were keen to portray themselves as traditionalists rather than terrifying revolutionaries. In a brilliant piece of early spin, they dreamed up the “Norman Yoke”—the idea that William the Conqueror had destroyed a Saxon Eden which first the barons, and now they, were trying to revive. “The Charter of our liberties, called Magna Carta…was but a renovation and restitution of the ancient laws of this kingdom,” as Sir Harbottle Grimston put it.
Leader of the pack of parliamentary lawyers was Coke, James I’s chief justice before he turned against the monarchy. Magna Carta was one of his principal tools. Some of his claims about it—that it had been ratified by an ancient parliament, for instance—are nonsense. But he successfully argued that the crucial chapter 39/29 established the precedent of limits to monarchical power: “Upon this chapter, as out of a roote, many fruitful branches of the Law of England have sprung”. He used Magna Carta as the basis of the Petition of Right, the proto-constitution that Parliament forced Charles I to sign.
Decapitation and a further, more peaceful, revolution tamed the English monarchy; once Parliament was top dog, its members lost interest in constitutions. Except among radicals, who waved it despairingly through the 18th and 19th centuries, Magna Carta went out of fashion in England. But it found new life in America.
The first colonies were established just at the time that Coke had turned to needling James I, and the spirit of that argument shaped them. Coke wrote the first Virginia charter, guaranteeing the settlers’ rights as free English subjects; William Penn, founder of Pennsylvania, first published Magna Carta in America. The title of his book—“The Excellent Privilege of Liberty and Property Being the Birth-Right of the Free-born Subjects of England”—made his point pretty clearly.
The spirit of Coke strode through the incipient nation. Lawyers were over-represented among America’s Founding Fathers, and as students they were made to read him. They did not always find his prose inspiring—the young Thomas Jefferson wrote, “I do wish the devil had old Coke for I am sure I was never so tired of an old dull scoundrel in all my life”—but they recognised the importance of his vision to their cause. A more mature Jefferson was to write later to James Madison that “a sounder whig never wrote…nor of profounder learning…in what were called English liberties.”
The rebellious colonists quoted Magna Carta against the British Parliament just as the 17th-century parliamentarians had quoted it against the king. The Massachusetts Assembly, protesting against taxation without representation, said that the Stamp Act was “against the Magna Carta and the natural rights of Englishmen and therefore according to Lord Coke null and void”. When rebellious Massachusetts needed a new state seal, because the royal governor held the existing one, Paul Revere—he of the legendary Ride—engraved a replacement depicting a militiaman with a sword in one hand and Magna Carta in the other. The first Continental Congress in 1774 justified its rebellion on the ground that the colonists were doing “as Englishmen, their ancestors in like cases have usually done, for asserting and vindicating their rights and liberties”. And the echoes of that crucial chapter are clearly audible in the American Bill of Rights.
Home of the free
These days Magna Carta seems to belong to the Americans more than it does to the British. The memorial to it in a soggy Thames-side meadow was put up by the American Bar Association. American jurists still refer to it in legal cases: a federal district court judge ruled against delaying Paula Jones’s sexual-harassment suit against Bill Clinton, then America’s president, on the ground that “our form of government…asserts as did the English in Magna Carta and the Petition of Right, that even the sovereign is subject to God and the law”. When David Letterman, a chat-show host, quizzed David Cameron about it, Britain’s prime minister was unable to tell him what the words “Magna Carta” meant. In August 2014 the Supreme Court Chief Justice, John Roberts, said that “our American experiment has not reached a third of the age of Magna Carta, but we have given Magna Carta’s core concepts concrete meaning…in our constitutional framework.” The contrast with the English, who produced a document that inspired 800 years of idealism but failed to follow up with a modern constitution, was implied rather than stated.
This is only one of the many contradictions embedded in this revered piece of sheepskin inscribed with oak gall and sealed with beeswax and resin. A failure at its conception, it has shaped the course of human history at two of its most significant turning points. Designed to uphold feudal rights, it has been used by radicals to portray themselves as conservatives, the better to overturn the status quo. And, ultimately, a paradox lies at its heart: it speaks to the urge, felt most strongly in the Anglo-Saxon world, to justify the present by calling up the past—to change everything while pretending that everything remains the same.