Magna Carta – How did it survive? Is it relevant today?

The ‘Great Charter’ was sealed by King John under pressure from rebellious barons on 15 June 1215. While most of the Charter’s provisions were attempts by barons to remedy specific grievances, the Magna Carta in effect placed a limitation on arbitrary royal authority and sought to establish that the king was subject to the law and not above it.

Arguably the most important and enduring clause relates to the administration of the law: ‘No free man shall be arrested, imprisoned, dispossessed, outlawed, exiled or in any way victimised, or attacked except by the lawful judgement of his peers or by the law of the land.’ And: ‘We will not deny or defer to any man either Justice or Right’. In this clause, we see the notion of ‘law of the land’ - law applying to everybody - and we find the basis of trial by jury and due process, including the right to a speedy trial.

The Charter of 1215 was annulled by Pope Innocent 111 a couple of months after John sealed it, and the barons resumed their struggle. In the thirteenth century, there were two civil wars in England – the First and Second Barons Wars – taking in the reigns of John and his son, King Henry 111. The latter confirmed a revised version of the Charter in 1225 and, following the second civil war, in which the rebels led by Simon De Montfort established England’s first parliament, King Edward 1 reissued Magna Carta as a statute in 1297.

The Magna Carta of 1297 was reconfirmed more than 40 times by successive monarchs until the early fifteenth century. In 1354, Parliament agreed to a statutory interpretation that shifted Magna Carta’s clause about ‘No free man’ – which excluded the great majority of the population, the serfs - to the much more inclusive and democratic: ‘No man of whatever estate or condition’. Moreover, under a statute created in 1369, no law could be valid if it conflicted with Magna Carta. The Charter ceased to be prominent as a symbol during the fifteenth and sixteenth centuries when ‘royal sovereignty’ was reasserted by the Tudor and Stuart monarchs, though its influence continued in the common law.

Everything changed, though, when the world was turned upside down in the seventeenth century by the English revolution. The great jurist and parliamentarian, Edward Coke, asserted that Magna Carta is ‘such a fine fellow that he will have no sovereign’. These were seditious words, as the Stuart King James 1 saw things very differently. Coke spent nine months imprisoned in the Tower of London in 1621 but persisted with his support for equality before the law and for the sovereignty of parliament. Coke held the rather romantic view that Magna Carta represented the liberties of the English people that had existed since time immemorial.

The armed conflicts between the Parliamentarians and the Royalists led to the beheading of Charles 1 in 1649 and the establishment of a republican Commonwealth under the dictatorial Oliver Cromwell, followed by the Restoration of the monarchy in 1660 and the Glorious Revolution of 1688. In 1689, England became the first country in the world to adopt a Bill of Rights and the sovereignty of parliament was established from then on, with the monarch subordinate to parliament. Under this system of Constitutional Monarchy, the monarch could reign but never again rule.

Little did the barons of 400 years earlier realize what they had unleashed. The Magna Carta had become mythical – something far greater than its original intention. A symbol of struggle for liberty. The American revolutionists of the late seventeenth century embraced it warmly, and incorporated elements into the US Bill of Rights. Magna Carta’s influence continued in England in the nineteenth century in the form of the working class Chartist movement. It was no coincidence that the movement, demanding a great extension of democracy, mobilized around a ‘Peoples Charter’. These ideas and ideals were brought to Australia by the convicts and colonisers and greatly influenced Australia’s political culture and institutions.

In the twentieth century, following the Second World War when the United Nations adopted a Universal Declaration of Human Rights, one of its principal framers, Eleanor Roosevelt, said she hoped it would be an ‘international Magna Carta’. In more recent times, the 800-year-old document is still cited when people believe liberty is under threat. In 2005, when Tony Benn MP argued in the British Parliament against a Bill that would allow the imprisonment of suspected terrorists for 42 days without trial, he declared: ‘I never thought I would be in the House of Commons on the day Magna Carta was repealed.’

In March 2014, the inventor of the World Wide Web, Tim Berners-Lee, called for an Internet Magna Carta to ‘protect and expand the rights of users to an open, free and universal web.’ And in Australia, in 1996, activist Albert Langer evoked Magna Carta in his appeal to the Federal Court against a prison sentence for violating an injunction by encouraging people to vote in such a way as not to distribute preferences to the major political parties. Disagreeing with Victorian Supreme Court Justice Beach, he argued that, ‘The rule of law is a pre-condition, not a “paramount feature” of democracy’ and that ‘Resistance to usurped or tyrannical authority is an essential component of the rule of law formerly recognised as such since the Magna Carta’.

It is this spirit of Magna Carta that makes it relevant 800 years later, both to those of us who live in democracies and to those who don’t.