In Benedict XVI’s encyclical Deus Caritas Est, we read the following, referring to 1 Corinthians 13:3 on the centrality of charity: “This hymn must be the Magna Carta of all ecclesial service….” Benedict could use this reference to the famous English Charter in a modern encyclical from Rome on Christmas, 2005 because the Magna Carta has itself become a world-wide synonym of a basic rule, a foundation on which orderly life is built. In fact, this same Magna Carta had much to do with Benedict’s famous medieval predecessor, Pope Innocent III (1160-1216). Indeed, Innocent revoked it some three weeks after it was signed at Runnymede on June 15, 1215.
Thus, if anyone thinks that history is easy to understand, he should reflect on this fact: Innocent III, in his capacity as universal feudal sovereign, nullified the terms of the Magna Carta. It did not necessarily make him a tyrant. At the time, neither Innocent nor anyone else could have anticipated the subsequent fame of the Magna Carta. The reigning English monarch, King John, one of the worst of the English rulers, was at the time losing a war over his French possessions. King John swore loyalty to Innocent, who had already put England under interdict for John’s dealings with the Church. John’s oath was a way to gain time. In pursuing his interests in France, John had to tax the English barons heavily, too heavily in their view.
When John returned to England, he would not be accepted by the barons unless he agreed to certain specified liberties and procedures, 63 of them, to be exact. The king solemnly promised to abide by each specific clause of the Charter. In turn, the opposing barons agreed to support him if he kept his promises. Both John and Innocent, however, died within a year of John’s signing and the subsequent papal abolishing of its binding force. But with the agreement of Stephen Langton, the archbishop of Canterbury, the English barons re-proclaimed the document, with some changes, in 1225.
What was this famous legal document really like? What did it do? Some, like Oliver Cromwell, thought it was useless. Others did not think it particularly unique, since there were already hundreds of such charters throughout Europe. Others saw it as the basis of political responsibility, by limiting kingly rule. Still others considered it as the beginnings of natural “rights,” a doctrine, as Hobbes would later show, of most perplexing memory. The document is revealing to read. It is filled with medieval law issues and phrases. Yet it contains a thread of principle on which many nations—Canada, Australia, South Africa, the United States, India, and other former Commonwealth countries—have retained.
Most Americans today, in their largely secularized souls, would be shocked to learn that this famous Charter, which many of their own founders and judges have cited so laudably, begins this way: “Know that having regard to God and the salvation of our soul, and those of our ancestors and heirs, and unto the honor of God and the advancement of the holy Church and of the reform of our realm, by advise of our venerable father Stephen, Archbishop of Canterbury and cardinal of the Holy Roman Church….” God? A prince concerned for the salvation of his soul? Holy Church? Surely this is merely “private” matter, not to be mentioned in public.
In King John’s time, three centuries before Henry VIII also became head of the Church, we still find but one society with lords spiritual and lords temporal. This division of authority did not necessarily prevent one from usurping or infringing on what belonged to the other. The whole of medieval (feudal) society was a network of mutual obligations and duties. They did not speak of abstract “rights” but of defined concessions, agreements, promises, and duties. These latter were spelled out in detail, word for word. Agreements were to be enforced, if violated. The agreed duties were not just pious statements or unclear wishes that an individual, legislature, or court could “enact” or “deduce.”
The notion of an absolute or divine monarch is an early modern idea, not a medieval one. It comes from efforts of kings like Henry VIII and, earlier, John to concentrate all the independent powers, those of the Church and those of the barons and the towns, in their own hands. What we now know as the “modern state” came from this later process, not from the medievals. The origin of the modern thought, well outlined by Machiavelli and Hobbes, puts full power in the state, including power over the Church. The Parliament of England, as the inheritor of the king’s sovereignty, came to recognizes no authority over itself, neither Church nor monarchy. In this sense, the modern democratic state is the successor not of the medieval but of Roman law—“Whatever the Prince wills is the law”—and of the post-Reformation absolute monarchies.
Feudal society was a vast arrangement of mutual services and responsibilities, often blessed by confraternities and guilds. It was an effort to render justice—fair prices, fair standards—to various levels of society that were necessary for its survival and prosperity. While it is generally pictured that modern society arose to overcome stagnant feudal customs, the fact is that most of these customs had their roots in some mutual arrangement whereby both sides received what was thought to be due and fair.
The significance of the Magna Carta is said to be the effort to require a monarch (executive) always to act in a legal, defined way. It was a pragmatic effort to “limit” the arbitrary ways of a king’s acting against his subjects. Contrariwise, it defined the duties and responsibilities of “free men” to keep the same norms. Thus, clause #60 of the Magna Carta reads: “All these previously described customs and liberties which we have granted shall be maintained in our kingdom as far as it concerns our own relations towards our men. Let these customs and liberties be observed similarly by all our kingdom, by clergy as well as by laymen, in their relations towards their men.” These are rough men who can show a sense of fraternity and mutual accommodation that is more than just keeping the letter of the law. Civilization works through such practical realism.
The effort to settle matters peacefully, when constrained to do so, did not derive from some abstract political theory about human dignity or human rights. Rather, it arose out of particular issues and grievousness that needed to be fairly addressed and resolved. Almost every clause in the Magna Carta can be seen as addressing some abuse. Take clause #8. It reads: “No widow shall be compelled to marry, so long as she prefers to remain without a husband….” Feudal land laws bore obligations of tax and service to the king or to a baron. Some widows evidently were forced to marry to a designated second husband in order to keep control of the land. Though now freed from this coercion, the widow is still required to notify whomever the land has obligations to as various interests need to be settled. But she cannot be forced.
Clause #23 states: “No vill (a serf) or person shall be compelled to make bridges at river banks, except those who from of old were legally bound to do so.” The abuse was conscripting labor to build bridges which were no doubt needed. On the other hand, bridge-building was a service attached to other land rent. That is, such land-holders owed service precisely to build a bridge. It was conceived as part of a common good in which different specialties existed by custom.
Clause #33 reads: “Hence forth, all kiddles shall be removed from the Thames, the Medway and throughout all England, except along the sea coast.” Is this a big deal? These annoying “kiddles” had appeared in the English waterways. A “kiddle” (weir) is a low, often wooden dam with a slit or other nets designed to trap fish or send them to fish ladders. Clearly they had to do with fishing and food, a perfectly legitimate enterprise. But it wasn’t exactly fly fishing. What is wrong with trapping fish? No ecologists are around yet to forbid dams to preserve obscure species. But if there are dams all over the waterways of England, boat traffic—at that time the primary avenues of communication—could not be easily used because of the dams. In a way, this odd provision is really an agreement about inter-country (inter-state) commerce and freedom of travel and commerce.
One word that is striking in its use in the Magna Carta is “reasonable.” It recognizes that no exact statement about many things can be made in the law, so a prudent judgment or estimate of responsible men is what must be relied on in many cases of controversy. Such agreements often become the basis of “common law.” Thus, Clause #45 reads: “We will appoint as justices, constables, sheriffs, or bailiffs only those who know the law of the realm and who wish to observe it well.” We see many cases of such appointees who, no doubt, know the law, but who do not observe it “well.”
This fact touches the issue of whether a law, even an esteemed one, can bind subsequent generations to its norms, an issue very much with us still. It was once thought, in this context with regard to stability and binding force, that a “written” constitution, such as the United States has, is superior to an “unwritten” one, as the English have. Our courts, executives, and legislatures often show that they will find a way to be released from the written law.
The Magna Carta is also a set of legal procedures—who can hear cases of certain kinds, when, and with what procedures. It sets down how a ruler or court must proceed. The English Parliament actually grew out of the court system. Clause #36 states: “Nothing shall be paid or taken in the future for a writ of inquisition of life or limb. Instead it shall be given free of charge, and not denied.” It is the responsibility of the public authority to investigate crimes. This provision is an early form of habeas corpus, that is, if someone is to be charged with a serious crime that might cost his life, limb, or exile, he can request a “writ” to see is there is evidence enough for the trial to proceed.
Probably the most famous provision in the Magna Carta is #39, which is often said to be the basis of a trial by jury. In spite of many American founders and court decisions saying so, it is not quite trial by jury here. But the clause does require definite restrictions in the way law is enforced. “No free man shall be arrested or imprisoned or disseised (deprived) or outlawed or in any way harmed. Nor will the king proceed against him, or send others to do so, except according to the lawful sentence of his peers and according to the Common Law.” Laws obviously have to be enforced. But in doing so, certain steps must be taken. Among these is a judgment provided not by the king but by the accused’s “peers.” Obviously, this provision is designed to restrict any arbitrary government dealings with its citizens. It is not intended to prevent justice being carried out, but only to permit it after thorough investigation and judgment.
The Magna Carta provides for open transportation of merchandise, for foreign travel for citizens, and for standard weights and measures. It pays special attention to the formation of cities as free areas standing outside of the burdens and taxes of feudal laws. The whole medieval period was one of population growth that saw the formation of many towns and cities. Here is where “liberties” and “privileges” were stated and hammered out by agreement with feudal lords. Cities like those called Newton, or Freiburg, or Villanueva indicated this very process. The taxation of cities thus with their growing power was part of the drama of the Magna Carta. The beginnings of separation of powers as we know it can also be seen in the establishment of a council of barons in clause #61, though this separation was, in principle, an idea also found in Aristotle and in the Roman Republic.
The first and last major clauses of the Magna Carta deal with the Church—the pre-Reformation Catholic Church in England with its standard relation to Rome. Clause #1 affirms: “In the first place, we have conceded to God, and by this our present charter, for us and our heirs for ever that the English church shall be free, and shall have her rights entire, and her liberties inviolate; and we wish that it thus be observe.” Princes do not talk like this anymore! This affirmation means “freedom of elections” of bishops. King John mentions Innocent III’s “ratification” of these episcopal elections in the light of their “quarrel”—which began the whole mess in the first place. It occasioned Innocent to put England under interdict for John’s not allowing papal authority to appoint a bishop. Innocent then ordered the French king to enforce his authority.
Likewise, clause #63 reads: “We wish and we firmly ordain that the English church shall be free, and that men in our kingdom shall have and keep all of these previously determined liberties, rights, and concessions, well and in peace, freely and quietly, in their fulfillment and integrity, for themselves and their heirs, from us and our heirs, in all things and in all places for ever….” Such a statement could hardly be more fulsome. Clearly, the origins of any legal notion of freedom of religion in a constitutional sense are found here. But again, it depends on an agreement in which both parties agree to the liberties and concessions granted. In the light of these two articles of the Magna Carta on the Church, we can see how radical the action of Henry VIII and subsequent English monarchs was. The deaths of Mary, Queen of Scots, Thomas More, and John Fisher were direct consequences of these principles about the relation of the English Church to the Crown.
Looking back on 800 years of the Magna Carta, we realize that the literature written about it is enormous. It is not the only origin of our ideas about ruling and being ruled, but is certainly a fundamental source in understanding how we think about how we rule and are ruled. Finally, King John (again, a man of dubious character) concludes: “An oath has been sworn, on the one hand by us and on the other by the barons, that all of the aforementioned provisions shall be observed in good faith, and without evil intent.” A whole theology is contained in these words—to who is any oath “sworn”? What does “swearing” mean? Good faith? Evil intent?
At the 800th anniversary of the signing of the Magna Carta we cannot but be concerned by how much its spirit of limiting rule and providing freedoms and immunities has been eroded. Often this erosion came by using the very words of its provisions, especially those of “rights,” to increase the power of government over citizens, to limit freedom of religion and speech, and to subject citizens to laws and customs much more regimenting than most people in the feudal order might have imagined possible. Any significant relation between natural and common law has been ignored. A written constitution is no longer a real limit on the will of the state. Much of this “development” has been occasioned by legal and intellectual authorities finding what they wanted to find in documents meant to prevent such arbitrary use of power. In many ways, the Magna Carta stands not as a foundation of free government, but as a witness to what happens when its spirit and provisions are ignored or interpreted out of existence.