Magna Carta: justice for all?

‘[Magna Carta is] the Bible of the English Constitution.’ - William Pitt the Elder, British Prime Minister, 1766–68 
 

‘The democratic aspiration is no mere recent phase in human history.  It is human history. It permeated the ancient life of early peoples. It blazed anew in the Middle Ages. It was written in Magna Charta.’ - US president Franklin D. Roosevelt
 

‘We must never cease to proclaim in fearless tones the great principles of freedom and the rights of man which are the joint inheritance of the English-speaking world and which through Magna Carta, the Bill of Rights, the Habeas Corpus, trial by jury, and the English common law find their most famous expression in the American Declaration of Independence.’ - Winston Churchill
 

‘The remaining copies of that charter may have faded, but its principles shine as brightly as ever, and they paved the way for the democracy, the equality, the respect and the laws that make Britain, Britain.’ - David Cameron

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Every generation has its own view of Magna Carta; every politician a different interpretation. Hardly a year goes by without Magna Carta being held up as a great beacon of freedom from oppression: the great charter of liberties; freedom, justice and equality for all.

But Magna Carta wasn’t written as a document enshrining justice for all. Rather, it was very much a document of its time, one which reflects the concerns of a specific group of thirteenth-century noblemen.

Let’s look at it more carefully. The most famous clause is probably clause 40: ‘No free man shall be seized or imprisoned […] except by the lawful judgment of his equals or by the law of the land.’ This might sound like it is enshrining equality for all under the law, but we need to take account of the fact that ‘free men’ were only a small proportion of the people of England at the time: the barons themselves, plus the knights and the free peasantry – those men who owned some land and had the right to buy and sell it, rather than those tied to the land who made up the majority of the population. The barons who devised this clause had been influenced by the fate of one of their own, William de Braose: he had risen high in John’s favour and then fallen from it, his lands stripped from him at the king’s whim, his wife and son captured and starved at John’s order, and he himself exiled and hunted to destruction. The barons knew that if this could happen to one who stood so high in the king’s favour, it could happen to them.

And of couse, ‘no free man’ specifically excluded women; they were not to have equality under the law. Indeed, far from it: one of the lesser-known clauses of Magna Carta is clause 54: ‘No one shall be arrested or imprisoned on the appeal of a woman for the death of any person except her husband.’ This means that theoretically a woman could be an eyewitness to the murder of her parents, but the suspect could not be apprehended at her word, because her word was not enough: a woman’s testimony was not considered equal to that of a man. The barons may also have had a specific case in mind here, but if so, nobody has yet succeeded in identifying it.

Other clauses of Magna Carta reflect very specific concerns of the barons at the time, and make almost no sense when read in isolation today. The demand for the removal of fish-weirs on the Thames (clause 33) doesn’t get much publicity, but the weirs hampered trade (and therefore the creation of more wealth) by obstructing river craft carrying goods. Equally, the removal from office of the named men in clause 50 makes more sense when you realise how irritated the barons were that ‘foreigners’ – i.e. people who had arrived in England a bit more recently than their own Norman ancestors – were taking all the best jobs.

One of the final clauses in the document, clause 61, stipulates that a council of twenty-five barons would be chosen to ensure that the demands set out in the charter were kept by the king. This has often been seen as an early attempt to introduce parlimentary democracy, but again, it was more to do with the self-interest of the barons who devised the demands in the first place. They would elect the twenty-five from among their own number, to serve their own interests.

So, was Magna Carta useless? Did she, as comedian Tony Hancock once famously asked, die in vain? In short, no. The charter was not the great symbol of ‘freedom for all from tyranny’ that it was later made out to be, but it served two very useful purposes. Firstly, it put forward the principal that a king should rule according to an agreed set of laws, and not by whim alone. The problem with hereditary monarchy is that bad kings come along as often as good ones, so it is useful to have some legal restraints on arbitrary dictatorship. And secondly, as the years went by Magna Carta was reissued by later kings to demonstrate that they ruled in consulation with their subjects (or some of them, anyway); each reissuing of the document meant a reinterpretation for a new audience, so although Magna Carta did not set out to provide justice for all, it ended up symbolising that point almost by default.

The full text of the Magna Carta is available on the British Library website here.