CONSERVATIVE

Buoyed by this support, the rebels now threatened
to ask King Philip Augustus of France for help. Faced
with this prospect, King John agreed to negotiate.
Deliberations on what became known as the Magna
Carta—the Great Charter—soon ensued.
The failure of the Magna Carta
The Magna Carta is a product of its time. It rested
on the deeply held conventions of the period, and on the
intellectual and juridical milieu of the age.
Vincent unearths evidence suggesting that the
rebel barons “believed that good law had once existed
and that their duty lay in recalling and restoring it”. Thus,
the Magna Carta “is to be viewed as a deeply conservative,
not as a deliberately radical, measure”.
Negotiations took place over a number of months
and, therefore, no single author can be identified. The
authors borrowed from different sources of law which
suited their particular circumstances including, but
not limited to, the Coronation Charters of 1100 and
1135. There was no codification of English laws; yet
Magna Carta makes reference to the “law of the land”
and “reasonableness”. This indicates that there was an
existing legal convention buttressed by various legal
principles which effectively bound the King’s subjects.
The Magna Carta was an attempt to bring the King
within that same legal framework.
The Magna Carta was symbolically sealed on June
15, 1215, in a field near Runnymede, approximately
half-way between the King’s castle at Windsor and his
baronial base in London. It remains a product of its time
dealing with concerns, matters, and incidents which are
very time-specific. Out of its original 63 clauses, only
four remain in the statute books today.
The charter was primarily intended to be a peace
treaty. The Magna Carta, in its original form, never
took effect. In this regard it was an abject failure: It
was repealed in nine weeks. John took advantage of his
new-found friendship with Innocent III and protested
that his ‘divine right to rule’ was infringed upon by the
barons. Innocent agreed and declared the Magna Carta
to be “null and void forever” since the King was forced
to accept the agreement “by violence and fear”.
Nonetheless, the Magna Carta has been given
place of pride in popular lore. It is largely credited
with debunking the myth that power was unlimited. Its
significance wasn’t lost in Medieval England, either.
King John died a year later, in 1216. At the
coronation of his nine-year old son, King Henry III, the
Charter was re-issued and re-packaged as a manifesto of
good governance. On this occasion, the Magna Carta
had the approval of the King’s Chief Minister and the
Papal Legate, thus giving it the authority which the 1215
version lacked.
Magna Carta was later revised and re-issued
on several occasions. By 1225, only 37 of the original
clauses remained. It was last re-issued during the reign
of King Edward I in 1300. By then, much of it had been
made redundant. All attempts to quash the Magna Carta
on the part of some of the King’s courtiers had only
served to strengthen its “totemic status as a touchstone
of communal liberties guaranteeing the king’s subjects
against tyranny”.
In time, it seemed increasingly unlikely that the
Magna Carta would recede in the popular imagination.
And it became part of two grand epics: the English
national epic and the epic of liberty. It served as
a historically tangible embodiment of an ancient
constitution—“a brake applied by the past to present
tendencies within the law”, according to Vincent.
Symbol for the English-speaking world
In the English-speaking world, the Magna Carta
became a rallying symbol; the founding document of
an epic of liberty which is often cited and quoted to
support specific political platforms related to freedom,
liberty, and the language of rights. It has become a staple
in what Herbert Butterfield describes as the “Whig
interpretation of history”—which amounts to the
tendency of historians “to praise revolutions provided
they have been successful, to emphasise certain principles
of progress in the past, and to produce a story which is
the ratification if not the glorification of the present”.
Despite the dangers of such an historical approach,
the epic surrounding the Magna Carta has inspired
various institutions which provide for governmental
checks and balances, and which limit the overarching
powers of institutions. The so-called ‘epic of liberty’
which formed around the Magna Carta has served to add
legitimacy to such practices and institutions, providing
both an historical framework and a reference point.
The Magna Carta was largely credited with
asserting the concept of “consent” and the principle
that the business of government was to be conducted on
behalf of a “community of the realm”. This took place
within a feudal political order and thus it was only the
tenants of the king who could have exercised influence.
From 1250 onwards, consent was to be exercised through
a representative assembly—a parliament—where kings
and representatives could meet.
Less than a century after the signing of the Magna
Carta, King Edward I faced widespread discontent over
taxation. On two occasions during his reign he had
to acknowledge that his power was somewhat bound
by the Magna Carta. He set the precedent for having
parliaments seek a re-confirmation of the Charter and a
clarification of its meaning. In the 14th century, this led
to the formation of parliament as a permanent political
institution acting, according to R.V. Turner, as both
“protector and interpreter” of the Magna Carta.
The Magna Carta would later experience a second
popular revival during the 17th century conflicts between
King and parliament. While the King asserted his royal
prerogatives, parliamentarians turned towards supposed
“ancient constitutions”. The Magna Carta was perceived
to be a key component of England’s ancient constitution.
One contemporary, the famed jurist and lawyer
Sir Edward Coke—described by Friedrich Hayek
as a “fountain of Whig principles”—conceived his
own interpretation of Whig history, describing the
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Summer 2015