Lord Acton, the great historian of freedom, understood that “liberty is the delicate fruit of a mature civilization.” The liberty of which he spoke embraced a broad scope of human freedom, including dimensions political, intellectual, economic, and, especially, religious. The civilization of which he spoke was the West, whose heritage of Greek philosophy, Roman law, and Christian faith indelibly marked it and inexorably pushed it toward the full panoply of liberties we enjoy today and to which the rest of the world looks. And the history he sought to express was the unfolding witness to the expansion, refinement, and richer application of the principles of liberty.
In celebration of the Acton Institute’s tenth anniversary and in the spirit of Lord Acton, Religion & Liberty is publishing a series of essays tracing the history of, as Edmund Burke put it, “this fierce spirit of liberty.” We shall look at several watershed documents from the past thousand years (starting this issue with the Magna Carta), each of which displays one facet of the nature of liberty. We do so to remember our origins and to know our aim. And we do so because, in the words of Winston Churchill, “We must never cease to proclaim in fearless tones the great principles of freedom.” – the Editor
When John Adams in 1779 noted that one of the great virtues of the new American republic rested in the fact that it was “a government of laws, and not of men,” he was pointing to the venerable principle of the rule of law. By “rule of law,” I mean a regime largely refereed by legal and judicial procedures and where all citizens, including the ruling authorities, stand equal before and are all equally subject to the law. In our day, the rule of law has become so intertwined with Western political institutions as to become a truism, and, as with most truisms, it is largely taken for granted, its origins and developments remaining largely neglected. In the past thousand years of Western political history, the Magna Carta stands as the primary precedent for the rule of law. Historian Paul Johnson, reflecting on the Magna Carta’s significance, writes, “church and secular forces came together to force the crown itself … for the first time to submit publicly to the rule of law.” This signal event had lasting political significance for the West (and, later, for the world); in Winston Churchill’s words, “throughout the document it is implied that there is a law which is above the King and which even he must not break. This reaffirmation of a supreme law and its expression in a general charter is the great work of the Magna Carta; and this alone justifies the respect with which men have held it.”
This revolutionary advance against political monopolism occurred when British nobles forced King John to approve the document, south of Windsor on June 15, 1215, with his seal. Helen M. Cam noted in Magna Carta–Event or Document? at its 750th anniversary that “never before had a king of England been compelled to authenticate a document which, as he said, took the crown off his head and subjected him to five and twenty overkings. The event, without precedent, set a precedent.” Shortly after the coercion subsided, King John asked Pope Innocent III to revoke the charter (which he did on August 24, 1215), but when John died a year later, the nobles rapidly reissued similar versions of the original under the name of the young Henry III. Later, in exchange for permission to increase taxes, Henry, of his own volition, reissued a similar charter in 1225. This 1225 version sits at the head of the British statute roll. Since then, this agreement between the ruler and the ruled has been recognized as a pillar of free government. (Historians debate whether the Magna Carta should be dated at 1215 or at 1225. King Henry III’s charter of 1225 is the most frequently quoted in British constitutional history, although the original was, no doubt, the first attempt to articulate these liberties.)
To appreciate fully the Magna Carta’s significance, we need to understand how radical it was at the time and, then, to learn something of how long its shadow extended. Although revolutionary, it was not entirely novel, having predecessors in Western political thought. Still, most admit its unreversed advance, the test being its abiding validity nearly a millennium after its adoption.
A Pivotal Event for the West
The Magna Carta was a medieval catalogue of liberties, rights, and safeguards from governmental intrusion. It did not arise, however, apart from convulsion. King John’s heavy taxation led to mounting opposition, and several preliminary charters were drafted by leading clergymen. By Christmas of 1214, the barons and clergymen were united in opposition to John, but the revolution was stalled until Easter of 1215 by a promise from John to grant select concessions. After that time, civil war broke out, only to be calmed by the June 1215 accords.
Reflecting the medieval theology of its time, this document was a benchmark of civic liberties, rooted in the Christianity of the day. Although it is seldom admitted by modern secularists, medieval political theories were robust and fairly well developed. The charter addressed subjects ranging from inheritance laws to the payment of widows’ debts, from fair standards of trade to judicial protocols. This signal event, rather than indicating the crudity of unenlightened people (clause 42 included an early form of open immigration policy, though clause 51 banished foreign knights and mercenaries), was a sign of maturity in political thought. Moreover, it was an example of the impact of Christian teaching on matters of government. It is not difficult to detect the religious fabric of the Magna Carta. Its preamble explicitly refers to the counsel of the clergy, including Stephen Langton, Archbishop of Canterbury, and other bishops. Some experts believe that if the charter was not actually drafted by Archbishop Langton, he at least was the animating force behind it.
The Magna Carta begins with an overt religious affirmation (“John, by the Grace of God, King of England”) and places the signers in impressive company for an eternal purpose: “We, in the presence of God, and for the salvation of our own soul, and the souls of all our ancestors … to the honor of God, and the exaltation of the Holy Church and amendment of our Kingdom.…” One of the first clauses granted freedom to the English church to elect its own leaders–a controversial idea for its day but one that later stood in the vanguard in other reformation movements. The free church was to have a prominent role in politics, and one clause even guaranteed that the King could summon archbishops, bishops, and abbots for counsel.
Beyond questions of the relationship between the church and the monarchy, the Magna Carta set forth a number of important principles of limited government. For example, trials were to be fair, fines were not to be levied for inconsequential matters, personal property was not to be confiscated without remuneration, taxes were to be raised only by “common counsel,” and imprisonment was not to be allowed without “legal judgment of [one’s] peers or by the laws of the land.” Moreover, previous unjust fines or confiscation of property were to be remitted, and a representative council of twenty-five barons was created “for god and for the amendment of our kingdom.”
This ground-breaking pinnacle of pre-modern thought did not create an international movement at first. What began as a council of twenty-five barons at Runnymede’s meadow later expanded into a global movement supporting responsive and free government.
Puritan Appeals to Magna Carta
To underscore the dramatic advance of the Magna Carta, we can say that it was not so much customs that were guaranteed but human freedoms–a seismic shift in political presuppositions. Whereas earlier treaties focused on “dignities” or customs, the charter discussed liberties. To further ensure its longevity, the Magna Carta was re-confirmed and republished in many languages and on different occasions. It was even ordered to be read twice a year in cathedral churches in 1297 and renewed yearly at Easter in other parishes. Into the early seventeenth century, it had been reiterated so often that Puritan parliamentarian John Selden once argued against a 1628 resolution: “Magna Carta has been confirmed thirty-two or thirty-three times, and to have it confirmed thirty-four times I do not know what good it will do.”
Puritans in seventeenth-century England would later appeal to the Magna Carta as part of their justification for the overthrow of the monarchy. Prior to this surge of Puritan political thought in England, medieval advances had set the stage for limited reform. In his History of Political Theories from Luther to Montesquieu, William Dunning argues that the propriety of councils to blunt the power of tyranny had become an acceptable notion by the Reformation. From the Magna Carta on, these political notions would dominate. Earlier, medieval constitutionalists had asserted that, as Dunning writes, “the king, while subject to no man, is always subject to law.” Notwithstanding, Dunning admits that such rights of Englishmen prior to the seventeenth century were neither well defined nor clearly expressed in constitutions. The period from these medieval constitutionalists to the seventeenth century saw halting strides toward popular sovereignty. Principled formulation for limited government, however, was not grounded in lasting theory nor accepted by the masses until after the Reformation.
A century after Calvin’s reformation in Geneva, many of his ideas–ideas that became part of the fabric of America–were further pioneered in London. Not only did the British Puritans introduce new ideas of ecclesiastical government, but they also permitted those views–ground-breaking for the time–to have an impact on their view of what the state could and should do. Toward the end of the Elizabethan period, the Puritans had convinced many people of the following notions: Monarchy, if not in service of the populace, was not immune from reformation attempts; the church was its own lawful governmental sphere, and hence free from civil interference; neither the church nor the state was divinely mandated to possess absolute power–indeed, republican or federal structure was more conformable to God’s plans; the church was free to resist, oppose, or seek the deposition of ungodly rulers in some cases; and freedom of speech, assembly, and dissent was condoned and would soon expand into numerous segments of society.
British Puritan parliamentarians such as Selden (despite his above-cited exasperation with its persistent confirmations) not only referred to the Magna Carta frequently as a basis for parliamentary authority but also recognized such notions as habeas corpus (clause 40) and rights to trial by jury (clause 39) as rooted in it. Later, the Glorious Revolution enshrined the substance of the Magna Carta as a virtually sacred token, supporting republicanism and a broad range of civil rights. By the founding of America, it was political heresy to criticize the Magna Carta. Added to its guarantees, the rights to dissent and freedom to publish (aided considerably by revolutionary advances in printing technology and distribution) would blossom in England among its Puritans as much as anywhere. From England, these ideas were exported throughout the world and became the mortar of America’s foundation.
The Magna Carta in Pre-Revolutionary America
Many Americans appealed to the Magna Carta. William Penn referred to it in his 1687 Excellent Privilege of Liberty and Property (it was also reiterated in the 1701 Pennsylvania Charter), and Increase and Cotton Mather often defended New England’s liberties as being rooted in the Magna Carta. This pulpiteering family claimed that “Christian liberties and all English liberties” were guaranteed by precedential documents, not by the changing whim of rulers.
By the late-1700s, the theological arguments explored by earlier theologians and broadcast by the Puritans were sounded, especially in America. Opposition to Britain’s monarchical claims arose from a largely Christianized people, who believed that real sovereignty belonged exclusively to God. Many could sound the “amen” to the 1775 comments by Harvard President Samuel Langdon before the congress of Massachusetts: “Thanks be to God that he has given us, as men, natural rights, independent on all human laws whatever, and that these rights are recognized by the grand charter of British liberties.”
The Great Charter’s Legacy
The rule of law and the idea that even the king is accountable to the same law as his subjects form one of the cornerstones of the free society and, as the history of the Magna Carta’s influence demonstrates, one of the primary bulwarks against tyranny. As Winston Churchill summarized in his History of the English-Speaking Peoples, “The Charter became in the process of time an enduring witness that the power of the Crown was not absolute.… And when in subsequent ages the State, swollen with its own authority, has attempted to ride roughshod over the rights or liberties of the subject it is to this doctrine that appeal has again and again been made, and never, as yet, without success.” Though the Magna Carta’s birth may have been inauspicious, the history of Western politics would have been far different–and far grimmer–had that principle not been, as King John concludes the Magna Carta, “given by our hand in the meadow that is called Runnymede, between Windsor and Staines, on the fifteenth day of June in the seventeenth year of our reign.”