Magna Carta: Eight Centuries of Liberty
June marks the 800th anniversary
of Magna Carta, the ‘Great Charter’ that established the rule of law for the
English-speaking world. Its revolutionary impact still resounds today, writes
Daniel Hannan
By Daniel Hannan in the Wall Street Journal
Eight hundred years ago next month,
on a reedy stretch of riverbank in southern England, the most important bargain
in the history of the human race was struck. I realize that’s a big claim, but
in this case, only superlatives will do. As Lord Denning, the most celebrated
modern British jurist put it, Magna Carta was “the greatest constitutional
document of all time, the foundation of the freedom of the individual against
the arbitrary authority of the despot.”
It was at Runnymede, on June 15,
1215, that the idea of the law standing above the government first took
contractual form. King John accepted that he would no longer get to make the
rules up as he went along. From that acceptance flowed, ultimately, all the
rights and freedoms that we now take for granted: uncensored newspapers,
security of property, equality before the law, habeas corpus, regular
elections, sanctity of contract, jury trials.
Magna Carta is Latin for “Great
Charter.” It was so named not because the men who drafted it foresaw its
epochal power but because it was long. Yet, almost immediately, the document
began to take on a political significance that justified the adjective in every
sense.
The bishops and barons who had
brought King John to the negotiating table understood that rights required an
enforcement mechanism. The potency of a charter is not in its parchment but in
the authority of its interpretation. The constitution of the U.S.S.R., to pluck
an example more or less at random, promised all sorts of entitlements: free
speech, free worship, free association. But as Soviet citizens learned, paper
rights are worthless in the absence of mechanisms to hold rulers to account.
Magna Carta instituted a form of
conciliar rule that was to develop directly into the Parliament that meets at
Westminster today. As the great Victorian historian William Stubbs put it, “the
whole constitutional history of England is little more than a commentary on
Magna Carta.”
And not just England. Indeed, not
even England in particular. Magna Carta has always been a bigger deal in the
U.S. The meadow where the abominable King John put his royal seal to the
parchment lies in my electoral district in the county of Surrey. It went
unmarked until 1957, when a memorial stone was finally raised there—by the
American Bar Association.
Only now, for the anniversary, is a
British monument being erected at the place where freedom was born. After some
frantic fundraising by me and a handful of local councilors, a large bronze
statue of Queen Elizabeth II will gaze out across the slow, green waters of the
Thames, marking 800 years of the Crown’s acceptance of the rule of law.
Eight hundred years is a long wait.
We British have, by any measure, been slow to recognize what we have.
Americans, by contrast, have always been keenly aware of the document,
referring to it respectfully as the Magna Carta.
Why? Largely because of who the
first Americans were. Magna Carta was reissued several times throughout the
14th and 15th centuries, as successive Parliaments asserted their prerogatives,
but it receded from public consciousness under the Tudors, whose dynasty ended
with the death of Elizabeth I in 1603.
In the early 17th century, members
of Parliament revived Magna Carta as a weapon in their quarrels with the
autocratic Stuart monarchs. Opposition to the Crown was led by the brilliant
lawyer Edward Coke (pronounced Cook), who drafted the first Virginia Charter in
1606. Coke’s argument was that the king was sidelining Parliament, and so
unbalancing the “ancient constitution” of which Magna Carta was the supreme
expression.
The early settlers arrived while
these rows were at their height and carried the mania for Magna Carta to their
new homes. As early as 1637, Maryland sought permission to incorporate Magna
Carta into its basic law, and the first edition of the Great Charter was
published on American soil in 1687 by William Penn, who explained that it was
what made Englishmen unique: “In France, and other nations, the mere will of
the Prince is Law, his word takes off any man’s head, imposeth taxes, or seizes
any man’s estate, when, how and as often as he lists; But in England, each man
hath a fixed Fundamental Right born with him, as to freedom of his person and
property in his estate, which he cannot be deprived of, but either by his
consent, or some crime, for which the law has imposed such a penalty or
forfeiture.”
There was a divergence between
English and American conceptions of Magna Carta. In the Old World, it was
thought of, above all, as a guarantor of parliamentary supremacy; in the New
World, it was already coming to be seen as something that stood above both
Crown and Parliament. This difference was to have vast consequences in the
1770s.
The American Revolution is now
remembered on both sides of the Atlantic as a national conflict—as, indeed, a
“War of Independence.” But no one at the time thought of it that way—not, at
any rate, until the French became involved in 1778. Loyalists and patriots
alike saw it as a civil war within a single polity, a war that divided opinion
every bit as much in Great Britain as in the colonies.
The American Revolutionaries weren’t
rejecting their identity as Englishmen; they were asserting it. As they saw it,
George III was violating the “ancient constitution” just as King John and the
Stuarts had done. It was therefore not just their right but their duty to
resist, in the words of the delegates to the first Continental Congress in
1774, “as Englishmen our ancestors in like cases have usually done.”
Nowhere, at this stage, do we find
the slightest hint that the patriots were fighting for universal rights. On the
contrary, they were very clear that they were fighting for the privileges
bestowed on them by Magna Carta. The concept of “no taxation without representation”
was not an abstract principle. It could be found, rather, in Article 12 of the
Great Charter: “No scutage or aid is to be levied in our realm except by the
common counsel of our realm.” In 1775, Massachusetts duly adopted as its state
seal a patriot with a sword in one hand and a copy of Magna Carta in the other.
I recount these facts to make an
important, if unfashionable, point. The rights we now take for granted—freedom
of speech, religion, assembly and so on—are not the natural condition of an
advanced society. They were developed overwhelmingly in the language in which
you are reading these words.
When we call them universal rights,
we are being polite. Suppose World War II or the Cold War had ended
differently: There would have been nothing universal about them then. If they
are universal rights today, it is because of a series of military victories by
the English-speaking peoples.
Various early copies of Magna Carta
survive, many of them in England’s cathedrals, tended like the relics that were
removed during the Reformation. One hangs in the National Archives in
Washington, D.C., next to the two documents it directly inspired: the
Declaration of Independence and the Constitution. Another enriches the
Australian Parliament in Canberra.
But there are only four 1215
originals. One of them, normally housed at Lincoln Cathedral, has recently been
on an American tour, resting for some weeks at the Library of Congress. It
wasn’t that copy’s first visit to the U.S. The same parchment was exhibited in
New York at the 1939 World’s Fair, attracting an incredible 13 million
visitors. World War II broke out while it was still on display, and it was
transferred to Fort Knox for safekeeping until the end of the conflict.
Could there have been a more apt
symbol of what the English-speaking peoples were fighting for in that
conflagration? Think of the world as it stood in 1939. Constitutional liberty
was more or less confined to the Anglosphere. Everywhere else, authoritarianism
was on the rise. Our system, uniquely, elevated the individual over the state,
the rules over the rulers.
When the 18th-century statesman Pitt
the Elder described Magna Carta as England’s Bible, he was making a profound
point. It is, so to speak, the Torah of the English-speaking peoples: the text
that sets us apart while at the same time speaking truths to the rest of
mankind.
The very success of Magna Carta
makes it hard for us, 800 years on, to see how utterly revolutionary it must
have appeared at the time. Magna Carta did not create democracy: Ancient Greeks
had been casting differently colored pebbles into voting urns while the remote
fathers of the English were grubbing about alongside pigs in the cold soil of
northern Germany. Nor was it the first expression of the law: There were
Sumerian and Egyptian law codes even before Moses descended from Sinai.
What Magna Carta initiated, rather,
was constitutional government—or, as the terse inscription on the American Bar
Association’s stone puts it, “freedom under law.”
It takes a real act of imagination
to see how transformative this concept must have been. The law was no longer
just an expression of the will of the biggest guy in the tribe. Above the king
brooded something more powerful yet—something you couldn’t see or hear or touch
or taste but that bound the sovereign as surely as it bound the poorest wretch
in the kingdom. That something was what Magna Carta called “the law of the
land.”
This phrase is commonplace in our
language. But think of what it represents. The law is not determined by the
people in government, nor yet by clergymen presuming to interpret a holy book.
Rather, it is immanent in the land itself, the common inheritance of the people
living there.
The idea of the law coming up from
the people, rather than down from the government, is a peculiar feature of the
Anglosphere. Common law is an anomaly, a beautiful, miraculous anomaly. In the
rest of the world, laws are written down from first principles and then applied
to specific disputes, but the common law grows like a coral, case by case, each
judgment serving as the starting point for the next dispute. In consequence, it
is an ally of freedom rather than an instrument of state control. It implicitly
assumes residual rights.
And indeed, Magna Carta conceives
rights in negative terms, as guarantees against state coercion. No one can put
you in prison or seize your property or mistreat you other than by due process.
This essentially negative conception of freedom is worth clinging to in an age
that likes to redefine rights as entitlements—the right to affordable health
care, the right to be forgotten and so on.
It is worth stressing, too, that
Magna Carta conceived freedom and property as two expressions of the same
principle. The whole document can be read as a lengthy promise that the goods
of a free citizen will not be arbitrarily confiscated by someone higher up the
social scale. Even the clauses that seem most remote from modern experience
generally turn out, in reality, to be about security of ownership.
There are, for example, detailed
passages about wardship. King John had been in the habit of marrying heiresses
to royal favorites as a way to get his hands on their estates. The
abstruse-sounding articles about inheritance rights are, in reality, simply one
more expression of the general principle that the state may not expropriate
without due process.
Those who stand awe-struck before
the Great Charter expecting to find high-flown phrases about liberty are often
surprised to see that a chunk of it is taken up with the placing of fish-traps
on the Thames. Yet these passages, too, are about property, specifically the
freedom of merchants to navigate inland waterways without having arbitrary
tolls imposed on them by fish farmers.
Liberty and property: how naturally
those words tripped, as a unitary concept, from the tongues of America’s
Founders. These were men who had been shaped in the English tradition, and they
saw parliamentary government not as an expression of majority rule but as a
guarantor of individual freedom. How different was the Continental tradition,
born 13 years later with the French Revolution, which saw elected assemblies as
the embodiment of what Rousseau called the “general will” of the people.
In that difference, we may perhaps
discern explanation of why the Anglosphere resisted the chronic bouts of
authoritarianism to which most other Western countries were prone. We who speak
this language have always seen the defense of freedom as the duty of our
representatives and so, by implication, of those who elect them. Liberty and
democracy, in our tradition, are not balanced against each other; they are
yoked together.
In February, the four surviving
original copies of Magna Carta were united, for just a few hours, at the
British Library—something that had not happened in 800 years. As I stood
reverentially before them, someone recognized me and posted a photograph on
Twitter with the caption: “If Dan Hannan gets his hands on all four copies of
Magna Carta, will he be like Sauron with the Rings?”
Yet the majesty of the document
resides in the fact that it is, so to speak, a shield against Saurons. Most
other countries have fallen for, or at least fallen to, dictators. Many, during
the 20th century, had popular communist parties or fascist parties or both. The
Anglosphere, unusually, retained a consensus behind liberal capitalism.
This is not because of any special
property in our geography or our genes but because of our constitutional
arrangements. Those constitutional arrangements can take root anywhere. They
explain why Bermuda is not Haiti, why Hong Kong is not China, why Israel is not
Syria.
They work because, starting with
Magna Carta, they have made the defense of freedom everyone’s responsibility.
Americans, like Britons, have inherited their freedoms from past generations
and should not look to any external agent for their perpetuation. The defense
of liberty is your job and mine. It is up to us to keep intact the freedoms we
inherited from our parents and to pass them on securely to our children.
Mr. Hannan is a British member of
the European Parliament for the Conservative Party, a columnist for the
Washington Examiner and the author of “Inventing Freedom: How the
English-speaking Peoples Made the Modern World.”