Magna Carta itself looked ill-equipped for a long and healthy life. Most of its 63 clauses were peppered with feudal jargon - ‘amercement’, ‘trithings’, ‘halberget’, hardly words to echo down the ages. And even when we do stumble on a few lines to make our hearts leap, historians step in and pour cold water on our enthusiasm. Take the most famous of its clauses, no. 39: ‘No free man shall be seized or imprisoned, or stripped of his rights or possessions…except by the lawful judgement of his equals or by the law of the land.’
Stirring stuff. But note, these wonderful privileges applied only to ‘free men’. In 1215, this was a small, specific group of only one in four of the male population. Women were entirely excluded. It’s upper class men looking after themselves.
But what about ‘except by the lawful judgement of his equals’? Trial by jury, surely? Actually, no. It just refers to a way of settling legal cases in the thirteenth century when it wasn’t clear which court had jurisdiction.
So where does the true importance of Magna Carta lie? Well, it wasn’t an entirely sickly child. It had a sturdy heart that would help it live on.
First, the charter showed that even a king must obey the law. Magna Carta doesn’t spell this out. But many of its clauses are examples of this hallowed principle at work. And too there’s another jewel, buried in Clause 39 itself. Forget for a moment its very limited application. A legal treasure was established in principle: arbitrary punishment is wrong.
But Magna Carta wasn’t finished there. It was - and still is - a living thing.
It was re-issued many times during the first centuries of its life. Whenever a king faced revolt, or needed to raise cash, he’d be forced to make concessions. And they were often incorporated into a rewritten Magna Carta.
The most far-reaching change came in 1354 during Edward III’s reign. Clause 39 - which had been limited to a few free men - was expanded to read: ‘no man, of whatever estate or condition he may be’ shall be punished ‘except by due process of law’. And if we accept that in the fourteenth century it was still unthinkable that women would yet be included, then we’re on the way to establishing a universal defence against tyranny.
Then, in the seventeenth century, Magna Carta took another leap forward – this time almost by accident. During the mighty clash between the English crown and parliament, the opposition needed a weapon of almost biblical importance to combat the king’s claim that he had absolute power given him by God. The great jurist, Sir Edward Coke thought he’d found it in Magna Carta. He believed that trial by jury and habeas corpus had been granted in the original document. We now know he was mistaken. But it didn’t matter. Coke’s commentaries on the Great Charter became the inspiration for those fighting for freedom and justice, not only in England but in the new colonies which were to become the United States of America.
When in the late eighteenth century the new Americans had won their independence and needed to define the rights of their nation’s citizens, they turned to Magna Carta. The Fifth Amendment of the Bill of Rights states: ‘...no person shall be deprived of life, liberty, or property without due process of law’. Almost a direct quote from the 1354 Magna Carta. And because the Great Charter was the inspiration for America’s founding fathers, it’s been cited no fewer than 900 times in American courts.
The Great Charter’s influence today has spread to every continent. As the British Empire broke up during more recent times, the newly independent Commonwealth nations founded their legal systems on English common law. Canada, Australia and India, for example, all acknowledge the inspiration of Magna Carta in their constitutions. And perhaps the most surprising places for the Great Charter to turn up are Germany and Japan- two countries which directly suffered authoritarian governments during the Second World War, and where Magna Carta is now taught in schools.
But the Great Charter’s most potent legacy lies in these three simple syllables: ‘due process’ - the words first used in the 1354 Magna Carta. Today barely a second goes by but that someone somewhere on earth isn’t using this phrase to challenge their boss when he threatens to fire them, to complain about an over-officious bureaucrat, or to object to a parking fine.
From defender of the privileges of a handful of English medieval aristocrats, to the world’s watchword of fairness and justice, Magna Carta has lived an extraordinary life.
By Derek J. Taylor