Catastrophe’s child

Catastrophe's child

Magna Carta at the British Library

Book Details

Anthony Arlidge and Igor Judge

MAGNA CARTA UNCOVERED

240pp. Hart. £25.
978 1 84946 556 4


Nicholas Vincent et al

MAGNA CARTA

The foundation of freedom 1215–2015
192pp. Third Millennium. £44.95.
978 1 9098 9028 0


Andrew Blick

BEYOND MAGNA CARTA

A constitution for the United Kingdom
314pp. Bloomsbury. £25.
978 1 849 46309 6

Magna Carta in the history of humiliating military failure and
written initiatives to restore trust

LINDA COLLEY

In February 1840, at the Bay of Islands in New Zealand, forty-three Maori chiefs signed a treaty drafted by British colonial officials. Neither side possessed a remotely adequate understanding of the other's languages or political concepts and assumptions. Nonetheless, as more and more signatures accumulated, some Britons began to refer to this document as New Zealand's Magna Carta: but only for a while. During the later nineteenth century, it fell into neglect, and rodents and water were allowed to spoil the original texts. A sustained resurgence and re­invention of the Treaty of Waitangi seems only to have begun from the 1930s, but in recent decades it has been meteoric. On the one hand, Maori activists have made increasing use of these documents to campaign for enhanced rights and the restoration of ancestral lands. On the other, New Zealand governments have poured millions of dollars into their display and into developing public education schemes around them. Widely represented now as New Zealand's founding document and as a demonstration of its quintessential and pioneering multiculturalism, the treaty has helped to enhance both the country's sense of cohesiveness and its international profile. It also functions as something of an emotive substitute for the written constitution that New Zealand still lacks. Texts really can matter.

Yet establishing exactly how high-profile constitutional texts do sometimes come to matter massively is challenging. Despite the fact that they are usually legal documents, at least in part, their precise wording often plays only a very limited part in their public impact. Opinion polls suggest both that most Americans revere their Federal Constitution, and that many of them have never read it. Major constitutional texts are much more than legal texts, moreover. They also tend to include elements of imagination and invention. Yet although they have spread across the world more dramatically even than the novel, most literary scholars ignore them. Generally secular texts, they nonetheless almost always attract sacral language, and – exactly like holy books – are invariably ransacked and invoked to support wildly divergent ideological positions. And, as the Treaty of Waitangi illustrates, while iconic texts of this sort are historical documents, their interpretation and use can fluctuate sharply over time. There is a further reason why these texts are hard to pin down and understand. For obvious reasons, they easily become encrusted with patriotic significance and are usually approached only as sui generis productions. Yet most important constitutional texts possess transnational histories of some kind.

Since it is so old and so very famous, Magna Carta poses these kinds of challenges in spades. June 15 this year marked the 800th anniversary of the sealing of the original document at ­Runnymede, which is close to Windsor and about 20 miles west of Central London. This was also the first centenary year of Magna Carta since 1615 in which the island of Great Britain was not distracted by serious armed uprisings or major overseas warfare, and the commemorations have been extensive, well choreographed and self-conscious. There have been major exhibitions at the British Library and the Society of Antiquaries, and at various cathedrals and castles associated with the story. There have been radio and television programmes, public lectures, school competitions, commemorative stamps and souvenirs, and royal visits to Runnymede; and there has been a plethora of new books. The three under review are all well worth reading, and each employs different strategies to investigate this deeply ambivalent text. Magna Carta Uncovered, co-authored by a QC, Anthony Arlidge, and a former Lord Chief Justice of England and Wales, Igor Judge, seeks to "uncover the medieval meaning of the Charter" and its evolution through a forensic analysis of its language. Nicholas Vincent's Magna Carta: The foundation of freedom 1215–2015 is the wonderfully illustrated companion volume to the British Library exhibition, but also much more; while Andrew Blick's highly intelligent Beyond Magna Carta combines a re-assessment of this ancient text with an argument for new constitutional writing in the UK in the future.

All three books confirm how much Magna Carta has always been a moving target. The original version survived only a couple of months, and there were fresh iterations in 1216, 1217 and 1225. Some of the initial clauses were cut and others amalgamated. Thus what became known as the "Golden Passage" – "No free man will be taken or imprisoned . . . save by the lawful judgement of his peers and/or by the law of the land. To no one shall we sell, to no one shall we deny or delay right or justice" – started out as clauses 39 and 40 in order (originally they were not numbered) before becoming known as clause 29. Even after the charter was entered into the statute book in 1297, understanding of its content remained in flux in part because extracts were sometimes read out loud in cathedrals, courtrooms and public squares, so men and women heard the document in different ways. In addition, the meaning of some of its most vital vocabulary altered over time. Initially, the charter's references to "free men" alluded only to those English inhabitants who were not villeins, perhaps a seventh of the population. Arlidge and Judge argue that ideas in this regard were already shifting by the 1330s, and certainly by the mid-seventeenth century some popular tracts were claiming the charter's provisions for all Englishmen (and occasionally and explicitly also for women) and interpreting its references to "liberties" as allusions to rights, not privileges.

All three books also go some way to demonstrating how inappropriate it is to approach the genesis of Magna Carta only in terms of England. The charter contains clauses relating to Wales and Scotland and was quickly extended to Ireland. Then there was the matter of varieties of French. Most of the leading actors in 1215 were Anglo-Norman. The very title "Baron" is of French origin. The Plantagenets too were hardly "English". As Vincent sets out with admirable clarity, the dynasty's origins lay in the Loire region and, by the twelth century, its dominion extended over Aquitaine, Normandy, England, part of Ireland, and even touched the crusader kingdom of Jerusalem. Even the most successful Plantagenet monarchs enjoyed only a mixed English reputation, but the reign of John, who was crowned in 1199, proved catastrophic. In particular, he was defeated in battle by the French King, Philip Augustus, in 1204 and lost control of Normandy, and there were further heavy military defeats across the Channel in 1214. To this extent, the genesis of Magna Carta possesses similarities with that of many other constitutional texts. Time and time again, humiliating military failures and/or over-extended and financially ruinous warfare have worked to undermine the authority of existing rulers and governments and energized political dissidents, and thereby established the pre-conditions for new, written political initiatives. Thus the contagion of written constitutions that occurred between 1750 and the 1830s is often put down to an "Age of Revolutions", but it can just as legitimately be linked to the long-term repercussions of the quantum rise in this period in the geographical scale and costs of war.

It was military failures more than his unattractive personal qualities (arguably exaggerated by subsequent chroniclers) that leeched John's authority. One of the insults flung at the King by opponents was the graphic "Soft Sword". As J. C. Holt noted in his classic survey of Magna Carta, military upheaval and defeats also prompted other twelfth-century and thirteenth-century European monarchs to make concessions in regard to liberties. Thus the War of the Sicilian Vespers, which began in 1282, both compelled Charles of Anjou to issue reforming ordinances, and led Peter III of Aragon to seek to curry favour with his subjects by conceding the Privilegio General. All three of these books maintain, however (and it would be interesting to know how far historians of Continental Europe and the world beyond agreed with this), that Magna Carta is a more developed and significant text than other, roughly contemporary royal concessionary documents. In retrospect, some of the charter's provisions undoubtedly did possess radical implications, though again not all of them stuck. Arlidge and Judge rightly devote attention to the so-called sanctions clause, which was pointedly abandoned in 1216. Originally, this provided for a kind of standing committee of twenty-five barons, along with "the commune of all the land", to "observe, maintain and cause to be observed" the terms of the charter. A monarch still viewed as divinely appointed was thus formally submitted to persistent supervision and potential correction by his ­subjects, and obliged moreover to agree that this should be so. Or that at least would be one interpretation of the clause.

But then, and as is the way with constitutional documents, so much to do with Magna Carta does depend on interpretation. Not only is this a relatively brief and shifting document that is now very old, but even its original drafters (whoever they were) may not fully have agreed on or understood its provisions. "It may be", comment Arlidge and Judge in lawyerly perplexity, that "the drafters of clause 39 were not entirely clear what its detailed meaning was". Moreover, there was an inbuilt tension in what happened at Runnymede on June 15, 1215, which has often been captured subsequently in art as well as prose. In Alexander Gibbs's stained-glass window of the sealing of Magna Carta installed in Mansion House in London in 1868, the politics involved are left visibly ambiguous. King John is shown enthroned in splendid robes, sceptre securely in hand. But the massed barons and knights who face him carry unsheathed swords and bristle with spears and axes. Are we witnessing essentially an ordered, negotiated treaty in which, as the Holinshed Chronicles tactfully phrased it, "God . . . touched the King's heart and mollified it"? Or is the essential moral of this scene rather the indispensability of armed resistance to correct unjust and arbitrary authority?

The longevity of such interpretational differences emerges vividly in Magna Carta: The foundation of freedom 1215–2015. Most of its chapters are the work of Nicholas Vincent, whose major research project into the charter, has uncovered much new material, but there are also contributions from specialists in other fields. More than anything else, three major developments can be credited with sharpening arguments over Magna Carta and fostering persistent interest in its meanings. First, the struggles between the Crown and the Westminster Parliament in the seventeenth century served dramatically to re-direct attention to the charter, and led to copious new writings and claims about it. Most durably perhaps, Edward Coke, who held a succession of high legal offices, and in the 1620s became a leading House of Commons activist, compiled a four-part masterwork, Institutes of the Laws of England, the first substantial work on English law in the vernacular. The second volume of this, especially, heaped honorifics on Magna Carta; and Coke's Institutes went on to become one of the foundation texts for the study of the common law throughout the British empire and on both sides of the Atlantic.

Second, and as Justin Champion outlines well in his chapter, the explosion in the volume and variety of print in England, Scotland, Ireland and the colonies, especially after 1700, helped make Magna Carta at once far more widely known and more diversely interpreted. On the one hand, establishment printed tomes such as the Statutes at Large represented the charter as the solid foundation of the English and British state. On the other, successive radicals and reformers such as John Wilkes, James Burgh and Granville Sharp drew on the document in newspapers and pamphlets in support of political change and a widening of rights. Disagreements over the document's meanings and potential were sharpened by a third development. The outbreak of the American Revolution in 1775 offered a fresh example (to those wanting to think this way) of heroic and principled individuals fighting for their rights and freedoms against a tyrannical monarch, only this time with George III standing in for King John. Americans began to claim – as many still do – that it was they, not the British, who best understood and lived out the significance of Magna Carta. Or as Joyce Lee Malcolm puts it in the Vincent collection: "Magna Carta's legacy remain[s] . . . more vibrant in America than in the land of its origins". Moreover, independent Americans began producing their own canonical constitutional texts, the Declaration of Independence, the state constitutions, the Federal Constitution and the Bill of Rights.

After 1789, this new wave of written constitutions increasingly spread into much of Continental Europe and South America and, from the mid-nineteenth century, into parts of Asia, South Asia, the Pacific world and Africa. And it is this proliferation of rival constitutional texts across the globe that helps to account for what Miles Taylor describes in this collection as Magna Carta's "unrivalled reputation as a constitutional icon in Regency and Victorian Britain". To be sure, some radical groupings in this period, conspicuously the Chartists, busily referenced the text. But what was more striking was how much dominant groupings in the British state now made a point of celebrating it. References to Magna Carta in parliamentary speeches increased markedly in the late eighteenth and early nineteenth centuries. Allusions to the charter also featured prominently in Victorian art, architecture and iconography, not least in the ornament of a new House of Lords. It was invoked in support of Britain's imperial civilizing mission (hence Waitangi as the Maori Magna Carta). Most of all, constitutional history, a term first popularized by an Englishman, Henry Hallam, became a major publishing and pedagogic enterprise, helping to spread knowledge of a sort about the charter, and fostering its position in a national saga of steady and sagacious political advance. This remained the case into the twentieth century.

The claim often made now that the British are not interested in constitutional matters thus needs to be recognized as a relatively recent invention as well as a suspect one. Many Victorian and early twentieth-century Britons were passionately concerned with constitutional issues and with constitutional histories of a sort, and not just for domestic reasons. Making a cult of Magna Carta and some later constitutional texts, such as the Petition of Right of 1628, was in part a reaction and riposte to the rising trend among other nations to adopt written constitutions. Old writings were evoked and re­burnished in the UK not just out of patriotic conceit, but also as a means of countering the growing competition posed by some far more modern, foreign constitutional texts. Such responses became more self-conscious as British power began to wane. James Bryce was a Scottish liberal politician and academic jurist who knew more about the growing power of the United States and its constitutional pretensions than most of his compatriots. In 1917, as Britain struggled with the First World War and with the strains posed by its new American military allies, he summoned up in defiance the heritage of Magna Carta. "It seems not too fanciful", Bryce wrote, "to say that the prelates and barons of Runnymede, building better than they knew, laid the foundation of that plan of written . . . constitutions which has now covered the world from Peru to China". Far from being overtaken by other countries' constitutional innovations, it was the British who had pioneered them.

We can expect future commentators to devote considerable energy to discussing what this latest burst of Magna Carta enthusiasm in 2015 reveals about the ideas, ambitions and anxieties of those most involved. It seems highly unlikely that the celebrations will work to reinvent the text for current and future generations as New Zealanders have been able to reinvent and revitalize Waitangi. Indeed, Andrew Blick suggests that the commemorations this year should rather provide an opportunity and springboard for correcting the defects of the current, uncodified British constitution. He argues, with considerable erudition, that both the formation of the current British state and its constitutional practices have relied far more heavily on a succession of major texts than routine references to an "unwritten constitution" or to parliamentary sovereignty imply, and that a future UK written constitution would have "an important basis in our historic thought and practice". Well, yes and no. English and British constitutionalism have indeed drawn heavily on various iconic texts; but in England and Wales a powerful influence has also been exerted by the common law, which is essentially based on a series of precedents and judicial decisions, not on a written code.

Moreover, one comes back to the fact that most major constitutional texts have been an outcrop of war or some other major trauma (Waitangi itself was partly sparked by British fears about French ambitions in the Pacific). Established political institutions and norms usually have to be destroyed or seriously threatened – by wars, invasions, major breakdowns of civil order, colonial uprisings, revolutions, and the like – before vested interests and inertia can be overcome, and serious re-writings of a polity can begin. If, in the future, Scotland secedes, it is likely we will see both a new Scottish constitution, and almost certainly a written constitution emerging too in what remains of the UK to help reinvent its identity and prop up its legitimacy. Unless or until that happens, one might more feasibly look for rather more modest gains from the elaborate celebration of the 800th anniversary of Magna Carta. It would be good if it raised sensitivity to issues of rights and prompted a revival of interest in constitutional history, a subject badly in need of intellectual reinvention and adventurous widening. It would be good, too, if British legislators were reminded by these jamborees of how important constitutional texts can be, of how very volatile they are, and of how much serious thought and legal and historical knowledge – and luck – are necessary if they are to become entrenched and to function effectively. As it is, the powers that be here are currently engaged in pushing a new constitutional proposal for English Votes for English Laws, alias EVEL. Those unacquainted with Westminster politics merely have to pronounce this acronym, which has been cheerfully bandied about by ministers and their acolytes. Magna Carta was a very long time ago.