From its inception the Charter was regarded as a universal panacea, a remedy for all evils. Over time, however, its actual clauses came to have less and less daily relevance. With all its talk of feudal technicalities, it was soon in danger of becoming an archaic and irrelevant relic. From the fourteenth century it was parliament that was to give precise legal expression to the Charter’s promises of free and fair justice.
The rediscovery of Magna Carta
Magna Carta was rediscovered in the early seventeenth century by Sir Edward Coke and the common lawyers, who viewed it as a weapon with which to counter what they saw as the intentions of the Stuart kings to set up an absolute monarchy. To those fearful of royal ambition in the 1630s, the Charter represented the ‘Ancient Constitution’, the ‘good old law’, guaranteeing the liberties of the people. The ideals and aspirations of the Charter were strongly represented in the Petition of Right of 1628, the most serious assault on the royal prerogative for over three centuries.
The Petition of Right, 1628. The Petition, which Charles grudgingly accepted on 7 June, condemned non-parliamentary taxation and the imposition of martial law and cited the famous clause in Magna Carta upholding the due process of law.
Lawyers, Diggers and Theorists
After the removal of the monarchy in 1649, the Magna Carta inheritance became more controversial. Radical groups, such as the Levellers, saw the Charter less as a source of liberty than a cover for defence of the interests of the privileged and well-to-do. To Gerard Winstanley and the Diggers, who created their encampment on St George’s Hill, Weybridge, Magna Carta had nothing to offer, because, to them, the rule of law was the rule of the upper classes. Even within the political elite Magna Carta was to come under challenge. At the end of the seventeenth century John Locke and the ‘natural rights’ theorists saw the Charter as obsolete, a relic of the past best swept away in the interests of rational government.
Magna Carta and the New World
Yet Magna Carta would not go away. Across the Atlantic in the American colonies it took on a new life, because the charters of the early colonial companies guaranteed settlers’ rights as free English subjects. In 1606 the charter of the Virginia Company, drafted by Coke, had said that the colonists were to ‘have and enjoy all liberties, franchises and immunities …. as if they had been abiding and born within this our realm of England’. A century and a half later, when threatened by taxation by the English government, the American colonists appealed to the Charter with their cry ‘no taxation without representation’. Assent to taxation was the principle enshrined in clause twelve of the 1215 Charter.
Magna Carta and the United States
The American colonists found a convenient model for armed rebellion in the barons’ rebellion against King John to force him to accept Magna Carta. Once they had won their independence, many of the colonies inserted into their constitutions clauses like the famous chapter 39 of Magna Carta, which guaranteed that no free man would be imprisoned or lose his property without trial by his peers or the due process of law. In 1791 the first ten amendments to the federal Constitution, known as the Bill of Rights, built upon foundations laid in Magna Carta.
Text by Professor Nigel Saul, Royal Holloway, University of London.