As so often, it is Tony Hancock who puts it best: “Does Magna Carta mean nothing to you? Did she die in vain?”
Admittedly, for Hancock, Magna Carta is “that brave Hungarian peasant girl, who forced King John to sign the pledge at Runnymede and close the boozers at half past ten”. But briefly at least, it must have looked as though the real Magna Carta did die in vain. After all, it was annulled by the pope within three months, on the grounds that it was exacted under duress. Little more than a year later the king himself was dead.
Yet Magna Carta has its own genius, and it has evolved into an idea that sits above the petty politics of left and right. Its magnificent articles 39 and 40 – which forbid seizure or imprisonment without lawful judgment, and the sale, denial or delay of justice – are rightly celebrated as cornerstones of the British constitution, and so of the modern international rule of law.
Today Magna Carta is claimed by many on the left of politics. For them it is a radical document of popular opposition to tyranny, a pioneering statement of human rights and the foundation of our parliamentary democracy. Similar views are held by some Americans, who see in it revolutionary fervour and a proto-constitution akin to the “Miracle at Philadelphia” of 1787.
Unfortunately, this is a misreading. The Great Charter was not the product of extended reflection but put together in haste. It nowhere mentions democracy, nor anything close to it, and it pre-dates the establishment of full democracy in this country by more than 900 years. King John was not a tyrant and parliament did not exist at the time. One can hardly imagine a group further removed from radical populism than the bishops and noblemen who signed it. The “free men” whose rights it declares were barely one in seven of the (male) population.
In fact, Magna Carta is a profoundly conservative document. That moment at Runnymede was an extraordinary one, without doubt. Yet the charter was not a novelty. Rather, it codified and repeated rights that had long had currency; and its influence derived from later demands that each new sovereign repeat, and perhaps extend, them.
These rights arose from the common law, the law of the land not of the rulers, a body of law that arose piecemeal and gradually evolved in reaction to particular cases and particular demands for justice. This is not the statute law beloved of radicals, and its rights are not abstract generalities but specifically derived and enunciated. Far from being a radical bill of rights, the hallowed text of Magna Carta deals with fines, fees and land – and is all the stronger for it. Here, as so often in our history, it is property rights that secure individual freedom.
But the genius of Magna Carta lies not merely in its embodiment of the common law, but in its separation of personal kingship from the institution of the monarchy and its demand that the king may only levy taxes through his council. No man is above the law, it insists, and with power must come accountability. The charter’s “security” clause is a pioneering attempt to enforce these principles.
However, the story of Magna Carta also carries an implicit warning to modern radicals. Understanding our constitution requires a careful reading of British history; it cannot simply be imported from America. There is no constitutional Year Zero. Changing the rules by which we are governed requires particularly careful thought. To codify our constitution would be to destroy it.
Jesse Norman is the MP for Hereford and South Herefordshire, and the author of a biography of Edmund Burke