MAGNA CARTA: How ‘the big issue’ became ‘The Great
Issue’
In 1215, at Runnymede, a written agreement was made between King John and his
barons. It was not signed by anyone: the royal seal was affixed to it. Nor was it called Magna
Carta. In fact it was not called anything special. Some referred to it as ‘the common charter of
the realm’. Over the following decade it was reissued several times. These later issues had
some clauses taken from them which formed the kernel of another - smaller - charter, the
Charter of the Forest (which related to Forest Laws, a medieval peculiarity). To distinguish
the parent from its offspring, the original was called ‘magna carta’, the Latin for ‘the big
charter.’
At the time of its making it was not seen as the great charter of English freedom, the
very foundation of our Constitution. In the thirteenth century it was exceptional but not
unique. It was deemed important, yes, but not revolutionary. Nor has it always been held in
such reverence as it is today, both here and in the United States. Oliver Cromwell may have
been the first, but he was not the last, to dismiss it as ‘Magna Farta’. He did so, of course,
because in the seventeenth century Magna Carta was deployed effectively by those lawyers
and parliamentarians who were determined to make the executive, be it King Charles or
‘King Cromwell’, subject to the law. That was, in essence, Magna Carta’s lasting
significance.
In origin it was an attempt by disgruntled barons to tame Bad King John, a king who
had bedded their wives, and who had exacted money from them for his ruinous and
unsuccessful foreign ventures. It was very much of its time. Many of its clauses sound very
odd to us. Jews were treated with the same civility as we accord bankers. The Scots will not
be pleased that their king should have the same status as an English baron. The Welsh may be
more pleased to have their grievances redressed and to see it expressed that Welsh Law
should prevail in Wales, but less pleased that this clause was never put into effect. Those
living in the rest of England may not be too enraptured by the fact that the measure of wine,
ale and corn was to be brought into conformity with that of London.
The charter was a medieval ultimatum: a restatement of liberties - privileges and
protections - in the face of arbitrary power, rather than an assertion of Liberty itself. The
rebels were not propounding, even in embryo, anything we should call ‘human rights’ unless
‘human’ excludes most of the populace. Even the change from the first draft of ‘any baron’ to
‘any free man’ was not much of an extension as the number of ‘free men’ was pretty limited.
Magna Carta did not create trial by jury. That came about as a result of another and equally
significant event that took place in the same year, 1215: the papal denunciation of trial by
ordeal. In England this ancient way of deciding guilt or innocence ceased virtually overnight
to be replaced with trial by jury.
But Magna Carta began the process to parliamentary democracy, to the enthronement
of the rule of law, and to the creation of English freedom. Arbitrary Power was leashed. The
Executive was put firmly under the law, even when that executive - in the person of the king was the source of the law itself. Its great principles, encapsulated now in the very name
Magna Carta, lived on, grew and expanded. In the seventeenth century they put steel into the
heart of parliamentary opposition to royal absolutism, leading to civil war and the judicial
execution of a king. In the eighteenth century they provided British citizens living in North
America with the intellectual ammunition to assert that Parliament too, source of law it may
be, was nonetheless subordinate to the law. When the parliament in Britain demanded
taxation without representation, the children of the Charter, could and did rebel. The United
States of America is the result, and its Constitution and Bill of Rights seek to encapsulate the
essence of Magna Carta. The reverence that Americans have for this medieval hangover
exceeds that of our own. They are responsible for the memorial at Runnymede itself.
Knowing of their addiction, Churchill wanted to entice them into the Second World War by
letting them have one of our four surviving original 1215 copies, the one held by Lincoln
Cathedral. It was saved for our posterity by the intransigent refusal of the Lincoln clergy,
even in the face the Nazi threat, to part with this priceless relic. Ironically, by so doing they
were exercising a freedom guaranteed to them by Magna Carta.
In our own day not much of Magna Carta remains on the statute book - just three
clauses: one maintaining the freedom of the Church; one guaranteeing the liberties of the
City; and one that applies to us all, even if we do not go to Church or work in the City, one
that has resonated down the centuries, one whose words are inscribed on the doors of the
Supreme Court: ‘to no one will we sell, to no one deny or delay right or justice.’
Magna Carta, remains an Excalibur waiting, if need be, to be drawn from the stone.
That need may be near. Should detention without trial be resurrected by parliament; should
delays in justice become unconscionable (and outside of riots, justice is rarely speedy);
should justice be denied because it had become too expensive or legal aid was inadequate
(and this is happening), then these two old Latin words would again provide a clarion call.
For many centuries now they have been understood to mean not the ‘big charter’ but ‘The
Great Charter.’ (Magna can mean either ‘big’ or ‘great’), proof, if it were needed, that the pen
is mightier than the sword.
Harry Potter