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The Charter, its background, popular misconceptions and its current popularity – Robin Griffith-Jones and Mark Hill QC on Magna Carta, religion and the rule of law
“Magna Carta,” said Sir Edward Coke, “is such a fellow that he will have no sovereign.”
June 2015: Magna Carta, at its 800th anniversary, is fashionable again. But what are we celebrating? And what good is the celebration going to achieve? The Charter may well be better known from Tony Hancock than from its own text: “Does Magna Carta,” asks Hancock’s version of Henry Fonda, “mean nothing to you? Did she die in vain? Brave Hungarian peasant girl forced King John to sign the pledge at Runnymede and close the boozers at half past ten. Is all this to be forgotten?”
A handful of the Charter’s clauses remain famous, chief among them Clauses 39-40:
“No free man shall be taken or imprisoned or disseised or outlawed or exiled or in any way ruined, nor will we go or send against him, except by the lawful judgement of his peers or by the law of the land. To no one will we sell, to no one will we deny or delay right or justice.”
There are others of comparable constitutional importance: the realm’s consilium (counsel/council) was to be consulted before tax was levied (14); and the 25 Surety Barons were given the power to constrain the king (61). We can readily acknowledge the practical importance of several more: measures were to be standardised (35); foreign merchants were allowed free movement within the country and through the Channel ports (41-2). Some clauses are more nearly infamous: the Charter cut back the right of Jewish moneylenders to moneys owed when a debtor died (10-11).
Even the most flattering perspective, however, cannot hide the distance of the Charter’s age from our own. So much is irrelevant now; surely no one will ever again be interested in church-livings and darrein presentment (18) – or in any other of 50 or more of the Charter’s clauses. Endearingly practical they may have been; but only antiquaries can care now.
The Charter was the settlement of a baronial plot to bring the king and his taxes under control. Even Clause 39 may have been designed simply to give the barons the rights in court before the king himself (who was under the notorious influence of his cronies from France) that the barons’ own tenants enjoyed before the barons. Worse still, in 1215 the Charter failed. The Pope annulled it within weeks, civil war resumed, the French invaded and only John’s death opened a tortuous route back to peace.
The Charter’s present fame is really due not to the thirteenth but to the seventeenth century, when it became a totem of the resistance to Stuart absolutism. Coke, Digges, Littleton and Selden invoked the Charter relentlessly against the king’s supreme sovereignty. Judgment on barons by baronial equals was now due process subject to Habeas Corpus. We ourselves are heirs of a Whiggish history that celebrates the long evolution of rights and freedoms into those that we treasure now. What we are enjoying this year is surely a decontextualised, atemporal Charter that the barons themselves would hardly recognise as their own.
Does this sound jaundiced? It is. Far more subjects gained from the Charter than we might imagine. Its beneficiaries were “freemen”; over half the households of England were free. All the rights granted to the king’s tenants-in-chief were to cascade down at those tenants’ hands to all levels of freemen (60). Over and again in the thirteenth century the king was granted taxes on condition that he confirm the Charter; the meeting in 1237 that demanded this confirmation was described as a “Parliament”, the first such usage in the language of England’s constitution. Sir James Holt, doyen of the Charter’s historians and famously austere in its assessment, saw in it a foundational moment. Magna Carta helped to create a society:
“The men who were responsible for the Great Charter of 1215 asserted one great principle. In their view the realm was more than a geographic or administrative unit. It was a community. As such, it was capable of possessing rights and liberties … which could be asserted against any member of the community, even and especially against the King.”
Of course we have come a long way since. The barons would be baffled by our court procedure; should we therefore disregard its foundation in their own achievement? Hardly. Shakespeare would no doubt be amazed by the theatre in his home town; but that is no reason to boycott Stratford. We may not want to owe our present ways of life to a gang of medieval plutocrats; but our grandchildren will still commemorate the Battle of Hastings in 2066.
The Temple and the Charter
We have a particular and more personal reason in the Temple to celebrate the Charter. The Temple was the king’s headquarters in the west of London, 1214-15. From here he issued the charter granting the freedom of prelatical elections in November 1214 and again in January 1215; this would become Clause 1 of Magna Carta, granting the freedom of the English Church. Here in January 1215 the barons first confronted John with the demand that he acknowledge his own fealty to a charter; the king was to be subject to the rule of a written law. And from the Temple in May 1215 the king issued the charter granting the freedom of mayoral elections to the City of London, on condition that the new Lord Mayor present him or herself to the king’s Chief Justice on the day of installation; 800 years later, this remains the basis of the Lord Mayor’s Show. We are delighted that in May 2015 the Lord Mayor, Sheriffs and Corporation returned to the Temple to give thanks for the London charter, bringing the charter itself with them for the night.
The hero of Runnymede, William Marshal Earl of Pembroke, is buried in the Temple’s Round Church; his effigy still lies here, next to the effigy of his eldest son, one of Runnymede’s 25 Surety Barons. We have gladly dedicated the Round this year to a Magna Carta Exhibition, to which the V & A has lent four spectacular plaster-casts of the effigies of the Marshals, of John and of Henry III.
Magna Carta, Religion and the Rule of Law
It was only fitting, then, that in 2014 we should hold a conference in the Temple on Magna Carta, Religion and the Rule of Law. The papers, with further chapters, have now been published by Cambridge University Press. There are contributions from Lord Judge, Lord Dyson, Sir Rabinder Singh and Professor Sir John Baker, from Rabbi Lord Sacks and the former Grand Mufti of Egypt. Jurists, theologians and historians from five faith traditions and three continents ask how Magna Carta’s biblical foundations have mattered and still matter now. John sealed the Charterm “from reverence for God and for the salvation of our soul and those of all our ancestors and heirs, for the honour of God and the exaltation of Holy Church and the reform of our realm”. The king was acting on the advice of two archbishops and nine bishops. The Charter itself was in many ways the work of Archbishop Stephen Langton.
It is perhaps too easy at our distance to spare the merest glance for the Charter’s theological preamble before focusing on the legislative meat. The preamble is, after all, no more than we would expect in a document from Europe’s Middle Ages. But we are in danger here of missing the heartbeat of the Charter. Langton had in his Parisian exile been among the most famous lecturers on the Old Testament. He expounded at length the subtleties of Israel’s covenantal kingship and of the restraints it laid on the king’s power and on the people’s obligation to obedience. Langton returned to England in 1213, and was from then on central to the negotiations that led to the Charter. He was clearly seeking to realise afresh in medieval England a biblical, covenantal kingship. The Charter is in the form of a covenant of liberties: a covenant between God, the king and the people, laying down the principles on which the king would reign.
Langton’s constitutional activism challenges the churches of the present day, for all the differences in the churches’ power and society’s ways, to look afresh at their place in our disjointed polity. And it challenges us all to acknowledge, perhaps with trepidation, the renewed vigour of the world’s theocratic traditions. Two Muslim contributors to Magna Carta, Religion and the Rule of Law look across a gulf at our secular, deracinated political and legal system and at the self-sufficiency it assumes in human principles and rationality. We might well look back with confusion at the unquestioned heteronomy and apparent lack of checks and balances in the idealised theocracy of Islamic thought. We hope that Magna Carta, Religion and the Rule of Law will for all its readers be an illuminating, thought-provoking exploration of religion’s place in the past, present and future of our polity. It was a particular pleasure that on the very day of the book’s publication Arden LJ in Sharpe v The Bishop of Worcester [2015] EWCA Civ 399 drew attention to the Charter’s Clause 18 and darrein presentment. No, Magna Carta did not die in vain.
Contributor Robin Griffith-Jones
Master of the Temple
Contributor Mark Hill QC
Francis Taylor Building, Inner Temple, London
Robin is the Reverend and Valiant Master of the Temple at the Temple Church and a Reader in Theology at King’s College, London. He is co-editor and co-author of Islam and English Law (CUP, 2013) and Magna Carta, Religion and the Rule of Law (CUP, 2015).
Mark practises at Francis Taylor Building and is regularly instructed in litigation with a faith dimension. He has written extensively on law and religion.
June 2015: Magna Carta, at its 800th anniversary, is fashionable again. But what are we celebrating? And what good is the celebration going to achieve? The Charter may well be better known from Tony Hancock than from its own text: “Does Magna Carta,” asks Hancock’s version of Henry Fonda, “mean nothing to you? Did she die in vain? Brave Hungarian peasant girl forced King John to sign the pledge at Runnymede and close the boozers at half past ten. Is all this to be forgotten?”
A handful of the Charter’s clauses remain famous, chief among them Clauses 39-40:
“No free man shall be taken or imprisoned or disseised or outlawed or exiled or in any way ruined, nor will we go or send against him, except by the lawful judgement of his peers or by the law of the land. To no one will we sell, to no one will we deny or delay right or justice.”
There are others of comparable constitutional importance: the realm’s consilium (counsel/council) was to be consulted before tax was levied (14); and the 25 Surety Barons were given the power to constrain the king (61). We can readily acknowledge the practical importance of several more: measures were to be standardised (35); foreign merchants were allowed free movement within the country and through the Channel ports (41-2). Some clauses are more nearly infamous: the Charter cut back the right of Jewish moneylenders to moneys owed when a debtor died (10-11).
Even the most flattering perspective, however, cannot hide the distance of the Charter’s age from our own. So much is irrelevant now; surely no one will ever again be interested in church-livings and darrein presentment (18) – or in any other of 50 or more of the Charter’s clauses. Endearingly practical they may have been; but only antiquaries can care now.
The Charter was the settlement of a baronial plot to bring the king and his taxes under control. Even Clause 39 may have been designed simply to give the barons the rights in court before the king himself (who was under the notorious influence of his cronies from France) that the barons’ own tenants enjoyed before the barons. Worse still, in 1215 the Charter failed. The Pope annulled it within weeks, civil war resumed, the French invaded and only John’s death opened a tortuous route back to peace.
The Charter’s present fame is really due not to the thirteenth but to the seventeenth century, when it became a totem of the resistance to Stuart absolutism. Coke, Digges, Littleton and Selden invoked the Charter relentlessly against the king’s supreme sovereignty. Judgment on barons by baronial equals was now due process subject to Habeas Corpus. We ourselves are heirs of a Whiggish history that celebrates the long evolution of rights and freedoms into those that we treasure now. What we are enjoying this year is surely a decontextualised, atemporal Charter that the barons themselves would hardly recognise as their own.
Does this sound jaundiced? It is. Far more subjects gained from the Charter than we might imagine. Its beneficiaries were “freemen”; over half the households of England were free. All the rights granted to the king’s tenants-in-chief were to cascade down at those tenants’ hands to all levels of freemen (60). Over and again in the thirteenth century the king was granted taxes on condition that he confirm the Charter; the meeting in 1237 that demanded this confirmation was described as a “Parliament”, the first such usage in the language of England’s constitution. Sir James Holt, doyen of the Charter’s historians and famously austere in its assessment, saw in it a foundational moment. Magna Carta helped to create a society:
“The men who were responsible for the Great Charter of 1215 asserted one great principle. In their view the realm was more than a geographic or administrative unit. It was a community. As such, it was capable of possessing rights and liberties … which could be asserted against any member of the community, even and especially against the King.”
Of course we have come a long way since. The barons would be baffled by our court procedure; should we therefore disregard its foundation in their own achievement? Hardly. Shakespeare would no doubt be amazed by the theatre in his home town; but that is no reason to boycott Stratford. We may not want to owe our present ways of life to a gang of medieval plutocrats; but our grandchildren will still commemorate the Battle of Hastings in 2066.
The Temple and the Charter
We have a particular and more personal reason in the Temple to celebrate the Charter. The Temple was the king’s headquarters in the west of London, 1214-15. From here he issued the charter granting the freedom of prelatical elections in November 1214 and again in January 1215; this would become Clause 1 of Magna Carta, granting the freedom of the English Church. Here in January 1215 the barons first confronted John with the demand that he acknowledge his own fealty to a charter; the king was to be subject to the rule of a written law. And from the Temple in May 1215 the king issued the charter granting the freedom of mayoral elections to the City of London, on condition that the new Lord Mayor present him or herself to the king’s Chief Justice on the day of installation; 800 years later, this remains the basis of the Lord Mayor’s Show. We are delighted that in May 2015 the Lord Mayor, Sheriffs and Corporation returned to the Temple to give thanks for the London charter, bringing the charter itself with them for the night.
The hero of Runnymede, William Marshal Earl of Pembroke, is buried in the Temple’s Round Church; his effigy still lies here, next to the effigy of his eldest son, one of Runnymede’s 25 Surety Barons. We have gladly dedicated the Round this year to a Magna Carta Exhibition, to which the V & A has lent four spectacular plaster-casts of the effigies of the Marshals, of John and of Henry III.
Magna Carta, Religion and the Rule of Law
It was only fitting, then, that in 2014 we should hold a conference in the Temple on Magna Carta, Religion and the Rule of Law. The papers, with further chapters, have now been published by Cambridge University Press. There are contributions from Lord Judge, Lord Dyson, Sir Rabinder Singh and Professor Sir John Baker, from Rabbi Lord Sacks and the former Grand Mufti of Egypt. Jurists, theologians and historians from five faith traditions and three continents ask how Magna Carta’s biblical foundations have mattered and still matter now. John sealed the Charterm “from reverence for God and for the salvation of our soul and those of all our ancestors and heirs, for the honour of God and the exaltation of Holy Church and the reform of our realm”. The king was acting on the advice of two archbishops and nine bishops. The Charter itself was in many ways the work of Archbishop Stephen Langton.
It is perhaps too easy at our distance to spare the merest glance for the Charter’s theological preamble before focusing on the legislative meat. The preamble is, after all, no more than we would expect in a document from Europe’s Middle Ages. But we are in danger here of missing the heartbeat of the Charter. Langton had in his Parisian exile been among the most famous lecturers on the Old Testament. He expounded at length the subtleties of Israel’s covenantal kingship and of the restraints it laid on the king’s power and on the people’s obligation to obedience. Langton returned to England in 1213, and was from then on central to the negotiations that led to the Charter. He was clearly seeking to realise afresh in medieval England a biblical, covenantal kingship. The Charter is in the form of a covenant of liberties: a covenant between God, the king and the people, laying down the principles on which the king would reign.
Langton’s constitutional activism challenges the churches of the present day, for all the differences in the churches’ power and society’s ways, to look afresh at their place in our disjointed polity. And it challenges us all to acknowledge, perhaps with trepidation, the renewed vigour of the world’s theocratic traditions. Two Muslim contributors to Magna Carta, Religion and the Rule of Law look across a gulf at our secular, deracinated political and legal system and at the self-sufficiency it assumes in human principles and rationality. We might well look back with confusion at the unquestioned heteronomy and apparent lack of checks and balances in the idealised theocracy of Islamic thought. We hope that Magna Carta, Religion and the Rule of Law will for all its readers be an illuminating, thought-provoking exploration of religion’s place in the past, present and future of our polity. It was a particular pleasure that on the very day of the book’s publication Arden LJ in Sharpe v The Bishop of Worcester [2015] EWCA Civ 399 drew attention to the Charter’s Clause 18 and darrein presentment. No, Magna Carta did not die in vain.
Contributor Robin Griffith-Jones
Master of the Temple
Contributor Mark Hill QC
Francis Taylor Building, Inner Temple, London
The Charter, its background, popular misconceptions and its current popularity – Robin Griffith-Jones and Mark Hill QC on Magna Carta, religion and the rule of law
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