hms iron duke

hms iron duke

Monday, 15 June 2015

Is it time for a new Magna Carta?

Alphen, Netherlands. 15 June. Is it time for a new Magna Carta?  Historian Simon Schama called it the “death certificate of despotism”. Eight hundred years ago today at Runnymede on an island in the middle of the River Thames midway between Staines and Windsor King John applied the Royal Seal to a document which in many ways became the foundation of contemporary Western ideas of liberty, democracy and law.  Magna Carta (Great Charter) or Magna Carta Libertatum (Great Charter of the Liberties) established the principle that not even monarchs were above the law and thus marked the beginning of the long end of arbitrary power in England and beyond. 

For most of those present at the sealing of Magna Carta it did not hold the significance it has come to represent today.  The Charter was essentially a deal between King John (1199-1216) and his barons designed to protect their Anglo-Norman aristocratic rights in the face of the king’s insatiable demands for money.  However, at least two men present may have had an inkling of the political and legal significance of the document; Archbishop of Canterbury Stephen Langton and William the Marshal, First Earl of Pembroke.

Archbishop Langton was the man who negotiated the Charter and acted as intermediary between King John and the barons. The irony is that Archbishop Langton’s election as archbishop represented an early struggle between ‘Europe’ and England.  Langton was anointed by Pope Innocent III in a struggle between Rome and King John that would have implications in time almost important as Magna Carta itself. 

William the Marshall was perhaps the greatest ever medieval knight (and a particular hero of mine).  Born in Wiltshire in 1146 into a relatively modest lower aristocratic family he became Europe’s leading chivalric champion, winning jousts across the Continent.  He went on to become England’s leading soldier and indeed under Henry II a leading statesman.  Renowned for his honour and probity Marshall was a man who stood on principle. 

Magna Carta’s key provisions were Articles 39 and 40 both of which suggest the influence of Langton and Marshall. Article 39 states that “No free man shall be arrested or imprisoned or outlawed or exiled or in any way victimised, neither will we [the royal ‘we’] attack him or send anyone to attack him, except by the lawful judgement of his peers or by the law of the land”.  Article 40 states, “To no-one will we sell, to no-one will we refuse or delay right or justice”. 

Although Pope Innocent declared the Charter unlawful as part of a grubby and ultimately failed rapprochement with King John the document was established in legal and political principle. Following the death of John from dysentery in 2016 Marshall was appointed regent to the child king Henry III and re-confirmed Magna Carta following his defeat of the French at the Battle of Lincoln in 1217.  The Charter was also cited by Simon de Montfort at what is regarded as the first modern English Parliament in 1265.  In the sixteenth century Sir Edward Coke used Magna Carta in the struggle with both King James I and King Charles I over the primacy of Parliament, which led to the English Civil War (1642-1649), and the creation of England’s first and only republic under Oliver Cromwell. 

Magna Carta was central to the idea of constitutional monarchy that was established with the Restoration in 1660 and suffused the Glorious Revolution in 1688 when it was feared that King James II wanted to re-establish an absolutist monarchy.  Above all, Magna Carta inspired the 1789 American Constitution which began the long internationalisation of the Charter which continues to this day.

The essential point of the Charter concerns the right to trial of an individual by one’s peers.  This principle of the right to trial by equals has not only underpinned English law for centuries it is the central pillar of English democracy and Parliament.  Indeed, it is the idea of the peer review of power and policy that underpins the idea of parliamentary sovereignty precisely because the Charter was in time used to establish Parliament as the law of the land overseeing the law of the land, not the monarch.

Ironically, parliamentary sovereignty is under as great a threat today as at any time since 1215.  Whereas in the past Magna Carta was the great principled barrier against the ambitions of tyrants and unscrupulous monarchs today it is challenged by those all too willing to transfer power away from Parliament to Brussels bureaucrats without the will of the people having been consulted or expressed. There are clearly those in Brussels who harbour the ambition that in time they will become the new law of and in England’s lands.

Therefore, whilst those present at the sealing of Magna Carta would not have understood the concept of democratic deficit they were unwittingly at Runnymede to address it.  Today, as power leeches away from Parliament and is rendered ever further distant from the people and with ever more laws being applied from Brussels in the form of European regulations or directives it may be time to issue a new Magna Carta that returns once again power to the people.

Julian Lindley-French

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