The Statesman’s Yearbook Online

edited by Dr Barry Turner



Magna Carta was eight hundred years old in 2015. Barry Turner explores its origins and explains how it came to be the guiding spirit for the British and American constitutions.

I was brought up on Magna Carta. As a schoolboy in Bury St Edmunds, a rural market town of medieval origins, I learned that it was here, in January 1215, in the once great abbey, that the heads of England's noble families gathered to pledge mutual support in their opposition to the tyrannical rule of King John. The sequel, six months later, was at Runnymede, a riverside meadow between London and Windsor, where John put his seal to a programme of reform called the Charter of Liberties or, subsequently and more famously, Magna Carta.

My introduction to the 'greatest constitutional document of all times'i came in the aftermath of a world war against fascism. It made for an inspiring story of an earlier victory over despotism, one, that for young people, was given a lift by tales of Robin Hood and his band of outlaws who ran rings round King John and his villainous Sheriff of Nottingham.

But while it did not take long to discover that Robin Hood was the stuff of legend, the myths attached to Magna Carta had more staying power. Even now, with the status of near holy writ bestowed on the 'oldest liberty document' it can come as a surprise that John's reputation as a thuggish oppressor was overstated, that the barons were by no means united in their resistance to the monarchy and that liberty, as understood by the champions of Magna Carta, was narrowly confined.

Like all warrior kings, John could be treacherous and brutal. With a personality driven by jealousy and suspicion, he was not one to inspire loyalty. But his problems were not entirely of his own making. Inheriting the crown from his brother Richard Coeur de Lion, or Richard the Lionheart—names that remind us of the strong Anglo-French connection—John came to the throne at a time when England was beginning the long transition into a modern state. While Richard, the great Crusader, had put military prowess above all else, he had fought his battles abroad. In his absence, which accounted for most of his reign, the English countryside was at peace. Benefiting from technological advances, ranging from water power to windmills, the barons, ensconced in their great castles, needed to feel secure in managing their estates. It was a reverie that became increasingly remote once John had taken on the mantle of royalty. As he saw it, he had a divine right to rule as he thought fit. This included surrounding himself with a talented bureaucracy (John was, above all, an efficient administrator) to enforce his will and to swell the royal exchequer.

The king's tax-raising powers were many and various. They included 'scrutage', the money paid in lieu of military service, an inheritance tax on large estates and a sort of transfer fee on wealthy widows who remarried. Though underpinned by feudal custom, these charges were resented on several counts. For one thing, John enforced them more rigorously than any of his predecessors. His coterie of treasurers and bailiffs seemed to take malicious pleasure in bending established rules to maximise the royal income.

At the same time, the rate at which taxes were levied was liable to be raised arbitrarily. There was some justification for this since the increased flow and circulation of coinage had doubled or even trebled prices. But with the concept of inflation as yet unknown, the barons concluded that they were paying more merely to satisfy royal greed. The censure might have been lighter had not John spent lavishly on ill-fated adventures across the Channel. Pressure on him mounted after his attempts to regain family territory in northern France ended ingloriously in 1214 at the Battle of Bouvines when Brittany and Normandy were irretrievably lost to the French crown.

Recognising the discontent that was bubbling up around him, John conceded enough to give the impression of reform. But it was too little too late. To add to his troubles abroad, he was soon faced with rebellion at home. With more than their share of grievance, it was the northern barons who took the lead. But they failed in their attempts to create a united front. Challenging the King in the exercise of his hitherto undisputed right to have the last word was, for many powerful landowners, an offence against the natural order. In the incipient civil war the barons who were for or against John were evenly balanced while the majority kept well in the background. Playing on the strength of tradition, John might have faced down the crisis but for one critical factor, his failure to hold London, the strong point of any campaign to win the country.

Both sides moved cautiously towards a deal. Casting himself as mediator, Stephen Langton, Archbishop of Canterbury, delved into ancient documents to find some sort of precedent for restraining the royal prerogative. But how was it possible to limit some kingly powers without limiting all his powers? And who would act as the impartial judge of royal right and wrong?

For those of us who are distant observers of the scene, another question arises. Were the barons speaking for themselves alone or do we go along with the nineteenth-century historian, William Stubbs, that their demands 'were no selfish exaction of privilege' and that they had 'cut themselves loose from Normandy and Norman principles and reconciled themselves to the nobler position of leaders of their brother Englishmen'?

Phrases like 'community of the whole land' and 'consent of the kingdom' are not hard to find in Magna Carta. But it is surely inconceivable that the barons had in mind a nation in any modern sense, let alone a constitutional monarchy. Their idea of good government was oligarchic with king and nobility working more or less in harmony supported by those of sufficient wealth and social standing to be called freemen. Excluded were the unfree, the serfs or villeins who made a subsistence living in service to their lords. They comprised over half the population.

So it was that much of Magna Carta addressed specific grievances with financial concessions to the barons as the first consideration. For the rest, the clauses that had bearing on the relationship between the king and his subjects were cast in vague terms that made for easy adaptation over the centuries. Thus 'consent of the kingdom' without which 'no scrutage or aid shall be imposed' eventually took on a much wider significance to the point where the American colonies, looking to independence from Britain, could cite Magna Carta in support of 'no taxation without representation'.

This was a concept beyond the wildest imaginings of the gathering at Runnymede who had no compunction in exercising autocratic judgement on the lower orders. The claim that the barons were championing the liberties of all men can only be sustained on the supposition that they were doing so without knowing it.

But if Magna Carta was not the birth certificate of freedom, it was, as Simon Schama argues, the 'death certificate of despotism'. Schama goes on to say that Magna Carta 'spelled out for the first time, and unequivocally … that the law was not simply the will or whim of the king but was an independent power in its own right, and that kings could be brought to book for violating it'.ii

The implications were not lost on John. Within weeks of the ceremony at Runnymede it was clear that he had no intention of holding to his part of the agreement. Claiming that his consent had been secured by force he appealed to the Pope, as supreme overlord, to intervene. Conscious of his own vulnerability, the Pontiff declared Magna Carta to be 'illegal and unjust'. For their part the barons enlisted as standard bearer Prince Louis of France, whose asset was a distant claim to the English throne. A lengthy civil war was in prospect when King John reputedly lost a large part of his worldly wealth in an ill-fated journey across The Wash in East Anglia and promptly succumbed to dysentery. His heir, a nine-year-old boy, was crowned Henry III in October 1215. No longer feeling under threat, the barons quickly rallied to the young king while Prince Louis, whose invasion force disembarked at Sandwich in Kent in May the following year, was soon sent packing.

While Henry was growing up under the tutelage of those who had stood against his father, Magna Carta gained authenticity. Supplemented in 1217 by a Forest Charter that gave freemen the right to turn forest land to commercial advantage so long as they did not cause damage to their neighbours, Magna Carta was amended slightly before it was reissued in 1225. It was this document that entered the statute books.

Curtailment of royal power was tightened in 1258 with the Provision of Oxford, which created a 15-member privy council, selected by the barons, to advise the king and to oversee his administration. A parliament was to be held three times a year. The battle between king and nobility had a long way to run but the principle of consent could no longer be ignored. In 1354 a statutory reference to the 'due process of law' was assumed to extend to all men, free or otherwise.

As the years passed, lawyers and political philosophers, keen to assert beyond challenge that England was governed by common laws to which even the highest in the land were subordinate, adopted Magna Carta as the cornerstone of a constitution. Critical to its evolvement was the work of Sir Edward Coke, the foremost jurist of Renaissance England. Stressing the freedom of the individual, Coke attempted to show that Magna Carta was 'the fountain of all the fundamental laws of the realm'. His selective interpretation led, in 1628, to the Petition of Right, an attempt to constrain the king's power to impose taxes without Parliamentary approval or otherwise to behave as if the entire country was his to command. For his part, Charles I was content to make formal recognition of Magna Carta but resolutely rejected any attempt by Parliament to limit royal prerogatives. The upshot was civil war culminating in the execution of Charles in 1649.

But there was still some way to go before Parliament was recognized as the supreme legislative institution. This came with the Glorious Revolution of 1688 when the throne was occupied by the Protestant William of Orange and his wife Mary. Their accession was marked by a Bill of Rights containing 13 articles defining the limitations on the royal prerogative and confirming the rights of Parliament and of all citizens. In effect, the Bill was an updating of Magna Carta, with, for example, Parliament as guardian of the common law and the sole authority for levying taxes.

By then, Magna Carta was making its impact on America. Its first appearance across the Atlantic was in the royal charter supporting the settlement of Jamestown, Virginia in 1607. Drafted under the direction of Coke, the founding document declared that 'the persons which shall dwell within the colonies shall have all the Liberties as if they had been abiding and born within this our realm of England'. These or similar words appear in the inaugural charters of, among others, Connecticut, Maine, Maryland, Massachusetts and North Carolina where, in 1663, land was granted on the same terms as the 'Great Deed of Grant' of Virginia, known as the 'Great Charter' and as 'a species of Magna Carta'. The governor of the Commonwealth of Massachusetts consulted books of English law including Coke on Magna Carta 'to the end we may have better light for making and proceeding about laws'.

The suggestion is that whatever the popular conception of Magna Carta, the framers of the rule of law for the New World knew well enough that the instrument of government, acknowledged reluctantly by King John in 1215, was not in itself a blueprint for a new society. Rather, it was a basis on which a consensual form of government could be built.

So it was that the barons who met at Runnymede were mythologized into champions of popular sovereignty. This was the guiding principle for the framers of the American Constitution and the subsequent Bill of Rights, which guaranteed freedom of religion, assembly, speech and of the press.

The spirit of Magna Carta is as potent as ever. While, eight hundred years on, we celebrate Magna Carta, not for what it was but for what later generations made of it, Runnymede marks the origin of the two essential tenets of working democracy—the accountability of government to the people and liberty from arbitrary arrest and imprisonment.

But in celebratory mood, it is easy to be complacent. Politicians pay lip service to essential liberties but recent experience suggests that they have other priorities. In the name of security, democratic governments collect masses of data on their citizens who remain unaware of how much the authorities know about them or how the information might be used.

There is more than enough evidence to show that intelligence agencies should be hauled in before they inflict real damage on those they are paid to protect. It is still hard to believe that as part of the Bush war on terror, prisoners were held in Guantanamo Bay without trial and that torture was justified as 'enhanced interrogation'.

Then again, the impact of the commercial giants on legislation and executive decision-making raises questions of transparency and accountability. And we have hardly begun to understand the reach of online search engines. Google alone is the 'largest holder of information, both public and private, in world history'.iiiCould Google's dominance be a threat to civil liberties? Who can say? But its co-operation with the Chinese Government between 2005 and 2010 in censoring politically sensitive search words is hardly encouraging.

Facebook with over one billion users has built an enormous resource of data on individual profiles that could put ordinary privacy at risk. The fact that most of the information is freely given does nothing to reduce the risk of commercial or political abuse. By way of balance the web with its myriad links between protest groups has the potential for exposing infringements on civil liberties and for containing the political tendency to meddle in affairs that are best left to the private domain.

Maybe what is needed is a Magna Carta for the twenty-first century, an attempt, however imperfect, to reassert fundamental freedoms in the age of globalization of knowledge and of unprecedented concentrations of power. There are no easy answers. Nor were there any in 1215. But the barons made a start on finding solutions to what then must have seemed to be intractable problems. In this anniversary year, we would do well to follow their example.

Barry Turner

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See also


i Said by Lord Denning, (1899–1999) a leading member of the British judiciary
ii Simon Schama, A History of Britain; p. 162
iii Peter Dahlgren, The Political Web; p. 57