Shakespeare did not refer to Magna Carta in King John, but he described the reaction of the English barons to a weak king. The king undergoes another coronation and takes fresh oaths of allegiance to overcome the excommunication. The barons are very restless at all this. The king tells them they will see how ready he is to accommodate them. Salisbury says:
When news comes of the death of Arthur, John is quite unmanned. All he can say is: ‘They burn in indignation. I repent.’ He is now a shuttlecock between the Vatican and the barons – and Innocent and the barons were very tough nuts. He is craven before Pandulf and he blames Hubert for not refusing to murder Arthur. (Reinhard Heydrich was cashiered from the navy – he appeared before a court of honour and blamed a pregnancy on the girl.) So that when it came to settling what was a kind of civil war, what Mafia dons called ‘making the peace’, King John had to make concessions that would have been unthinkable in the realm up to that time. The concessions appear in Magna Carta.
These barons were in truth not the flower of chivalry. One, Robert fitz Walter, called himself ‘Marshall of the Army of God and Holy Church.’ Robert de Ros was a marauding land rustler whose men attacked agents of the Sheriff of Yorkshire with bows and arrows. Well, the barons had among their number members who were capable of putting together a document of the first constitutional significance – the very first. John did not sign it – there is no evidence that he could write. It took legal effect when it was sealed with an oath.
Some very astute lawyers were involved in making this document, and they were not acting solely in the interests of the barons. The Charter provides for what is to happen ‘in order to have the common counsel of the kingdom for assessing aid.’ ‘Aid’ there means in substance tax. To ‘have the common counsel’ will harden into a requirement that the king get a statute from his parliament before he can get a tax. That then will be the lynchpin of the whole dispensation, since he who controls the money controls the game. That’s the process that was completed in 1689.
But the Charter is remembered and still invoked for two articles on the administration of justice. Articles 39 and 40 are as follows:
39. No freeman shall be captured or imprisoned or disseised [deprived of land] or outlawed or exiled or in any way destroyed, nor will we go [nec ibimus] against him, or send [nec mittimus] against him, except by the lawful judgment of his peers or by the law of the land.
40. To none will we sell, to none will we deny or delay right or justice.
These words were meant to be etched in stone. You might expect to find in a prayer book the words ‘nor will we go against him or send against him.’ If you want to know whether the original has the same lapidary quality, the Latin, partly shown, is just as moving.
Article 39 is no less than the foundation of what we call the rule of law. If the English people had only given Article 39 to the world, they would still have our gratitude. What this clause says is that liberty and property are not to be interfered with without due process of law. The phrase ‘due process’ enters into later versions of the Charter, and ‘due process’ is the concept that underlies much of the Bill of Rights in the United States.
If you borrow money for a company and default on repayment, the bank may send in a receiver over the business. There are difficulties about suing kings – what form of security, then, did the barons get from their faithless king? I said elsewhere:
They favoured the receiver model. Article 61 refers expressly to security (securitas) and it is in horrific terms that not even the most over-mighty and overbearing corporation, outside of Russia, would dare to seek. It provides that if the king defaults, the barons can give him a notice to remedy that default. If he does not, a committee of twenty-five barons ‘together with the community of the entire country, shall distress and injure us in all ways possible – namely, by capturing our castles lands and possessions and in all ways that they can – until they secure redress according to their own decision, saving our person and the person of our queen, and the persons of our children.’ Well, that is fine for the royal family, but what about the poor downstairs maid when that awful Robert de Ros, neither alone nor palely loitering, comes thundering over the drawbridge, leaving his chain mail behind him, in one of his beastly marauding moods, and holding something large and nasty in his hand?
….. The right of entry is given to a committee of barons ‘together with the community of the entire country’…. Communis is a very, very potent term here (as would be communio in a church). When the French monarchy was brought down in and after 1789, the government of the country for a large part came to rest with the commune of Paris, especially after the 10 August coup of Danton (in 1792). The revolutions that shook the great cities of Europe in 1848 were centred in the communes. A movement in favour of revolutionary change across the entire world to free the masses of their chains, which would cause so much misery in the twentieth century, was called the Communist Party after these communes. Yet here we have English barons giving these communal rights to the yeomen and all the freemen of England way back in 1215.
You cannot try to make a constitution in a vacuum. You need at least two things – a body of existing law that commands the assent if not the respect of a majority of the people; and a body of judges to interpret and enforce those laws. It looks like only England had those qualifications then. Remember that England was developing the first profession outside the church. It was this profession – including the judges in that term – that would celebrate and nurture Magna Carta so that it would become ‘with all its faults a kind of sacred text, the nearest approach to an irrepealable fundamental statute that England has ever had.’ The reference to sacred text from the sober legal historian Maitland tells us something. In order effectively to nurture a constitution, you need some kind of faith based on experience. We call it tradition.
Being a rat, King John straight away sent to Rome and got the Charter quashed. Exhibit A in the duress plea was the default clause – which was decently omitted from later versions. But the Charter kept getting reinstated.
What was its real significance? The king had to negotiate with his subjects in order to rule. He derived his authority not from God, but from the consent of the people revealed by this contract. That is why this is the most consequential document in the history of the world that was not said to have derived from God. And the significance of that liberation is on show in the play King John.
English legal historians tend to be coy about the role of contract in their and our history. But if the great shift has been from status to contract, as Sir Henry Maine said, then the Charter is its first great manifestation. And there is common ground that the Reformation in England had nothing to do with religion. It was all about political power, and in that it was a triumph. (Whereas in Germany, it was all about religion, and in that it was a political disaster.) If you want to see the effect of this liberation on England, compare the later histories of France, Italy, and Spain to those of England and Holland.
And the role of Magna Carta and the Reformation confirms my abiding impression that the rule of law comes down to little more than a state of mind that comes out the process of the common law so that the waters of Runnymede feed into those of the Campaspe.