Conservative History Journal

I hesitated whether this should come in this series of articles or not as it is a short piece, linked to an article by an historian who is most definitely not a Conservative and raises a question about modern politics. However, the article by Linda Colley, the well known historian, links present day arguments to Magna Carta and who am I to disagree with that.

The article is well worth reading in full as it quotes various constitutional historians and thinkers with great verve and knowledge. Essentially, Professor Colley argues that Britain's exceptionalism in that the country with some of the oldest constitutional documents in modern history has no written constitution has to be brought to an end. Britain must have a written constitution, especially as, Professor Colley argues, Scotland is probably about to have one.

There are one or two points on which I disagree with Professor Colley if I may be so bold and, indeed, insolent. In the first place, the idea of an independent Scotland has been put on what might be called a back burner since the referendum in which the Scots voted with a handsome majority in favour of staying in the United Kingdom. In any case, the offer of independence within the EU was a constitutional oxymoron.

Secondly, it is not entirely true that Britain has no written constitution. She does not have a single constitutional document along the lines of the United States Constitution and it might be a very good idea to acquire one. I see no particular need for a Constitution like the French one, which has been re-written on a number of occasions and that applies to most others that are around. But the American one is important, particularly as it and its first ten Amendments, better known as the Bill of Rights, utilized many English ideas.

Britain has a series of constitutional documents, of which Magna Carta is the first (well, more or less) and one of the most important ones. There are many others and the present government is suggesting that we should add to it with a new Bill of Rights. I wonder if Professor Colley agrees with that idea. Somehow I suspect that she might prefer the Human Rights Act and its overarching document the European Charter of Human Rights. But I may be wrong.

That brings me to the most important problem: we do, as it happens have a written Constitution and that is the Consolidated European Treaties, which are the Constitution for the EU and its Member States. For some reason Professor Colley does not refer to it.

Whether we need a single written constitution or not (and that needs to be discussed) there is no point to it while we are in the European Union, while European legislation comes above British Parliamentary legislation, while the ECJ and the ECHR are considered to be superior to British courts and while the Consolidated Treaties remain the overarching constitutional document. Is Professor Colley arguing for Brexit?

First a notice of what promises to be an interesting talk at the British Library about the other Charters. It is called Statutes, Constitutions and a Golden Bull: Early European Parallels to Magna Carta. The Golden Bull has been mentioned on this blog before but the others,the Statute of Pamiers (1212, the Constitutions of Melfi (1231) and the imperial land peace of Mainz (1235) sound very interesting as well. If humanly possible, I shall be there and report on the event.

Meanwhile, I have been reminded by a blog reader of the chapter on King John (An Awful King) and the Magna Charter in that best of all history books, 1066 And All That. (Here is an excellent history quiz published in the Guardian that is taken from the test papers of that fine book; here is the text of the book but I would still recommend that people acquire a paper edition for the illustrations if nothing else.)

Meanwhile, what do the authors say in Chapter 19?

1. That no one was to be put to death, save for some reason - (except the Common People).
2. That everyone should be free - (except the Common People).
3. That everything should be of the same weight and measure throughout the Realm - (except the Common People).
4. That the Courts should be stationary, instead of following a very tiresome mediaeval official known as the King's Person all over the country.
5. That 'no person should be fined to his utter ruin' - (except the King's Person).
6. That the Barons should not be tried except by a special jury of other Barons who would understand.

I. FIRST, We have granted to God, and by this our present Charter have confirmed, for Us and our Heirs for ever, that the Church of England shall be free, and shall have all her whole Rights and Liberties inviolable. We have granted also, and given to all the Freemen of our Realm, for Us and our Heirs for ever, these Liberties under-written, to have and to hold to them and their Heirs, of Us and our Heirs for ever.

IX. THE City of London shall have all the old Liberties and Customs which it hath been used to have. Moreover We will and grant, that all other Cities, Boroughs, Towns, and the Barons of the Five Ports, as with all other Ports, shall have all their Liberties and free Customs.

XXIX. NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land. We will sell to no man, we will not deny or defer to any man either Justice or Right.

This really is just a posting about random thoughts and a short one at that. (Phew! I hear you say.) I went to an interesting talk about the Human Rights Act and whether it is a good thing or not by Guy Herbert, the man who runs NO2ID. His conclusions were not quite what people might expect, unless you knew Guy and his habit of thinking every issue through to the logical and unpalatable end.

During the discussion, almost inevitably, the subject of Magna Carta came up with somebody arguing that a great deal of the discussion is conducted on an emotional level. Thus, people who were "against" the Magna Carta were deemed to be bad or very bad whereas those who were "for" it were obviously the good guys. He was not talking about the actual participants of that event in 1215 but about people who talked about the subject now.

How, I asked, can one be for or against something that happened in the thirteenth century and was, whichever way you look at it, of some importance in this country's history? That reminds me of the possibly apocryphal story about Thomas Carlyle hearing that Margaret Fuller said that she had decided to accept the universe. "Gad!" - said the great conservative sage. - "She'd better."

Of course, one is for Magna Carta but what one might be against is the hysteria that is already growing around that event, important though it was, the political shenanigans that we shall see with different parties claiming that mediaeval document for themselves and, of course, the miasma of inevitability that will surround so many of the discussions. Magna Carta in 1215 ergo Britain being uniquely free and democratic. Not so, but far from it.

On arrival, winners will be welcomed to the British Library by historian and TV presenter Dan Jones, who will explain the history and significance of Magna Carta. To the sound of live medieval music in the British Library’s entrance hall, winners will then be taken by costumed characters from the 13th century to view the four original Magna Carta manuscripts on display together for the first time.

In 1222, the country-wide movement of the servientes compelled Andrew II to issue the famous Golden Bull, sometimes mentioned as a counterpart of the English Magna Carta of 1215. Most of its thirty articles concerned the encroachment of the king and his barons and the unlawfulness of these as well as the alienation of large royal estates, but the ones most important for posterity decreed the uniform rights and privileges of the nobility: the exemption from taxes and from quartering troops, from the jurisdiction of others than the king and thepalatine, the freedom of the servientes from harassment by the barons, the requirement of a legal warrant to detain them, etc. An additional clause invested the secular and ecclesiastical lords with a right of resistance in case the aforementioned were violated by the king; a clause rarely invoked during the rest of the Middle Ages, but all the more often during the long period of Hungary's association with the House of Habsburg. However much of a mere plot the movement of the servientes, and however rudimentary the Golden Bull was, these were the beginnings of a process in which the idea of communitas regni became influential in Hungary and an estates based parliamentarianism developed, and groups outside the royal council had access to policy-making (for the first time at the assembly of 1277).

Of the many opposition movements [to Andrew II] the most important was that of the so-called royal servientes. "Servants" by name, they were in fact the freest agents in a society where even the relatively independent jobbágy warriors were high-placed subjects within the manorial system; the servientes themselvese were landlords, small or great, and possessed subjects, few or many, and called themselvess "servants of the king" because it was only to the king that they owed service and obedience - not as their landlord but as the ruler of the country.

Tory Historian finds on Londonist's excellent blog that the British Library will be celebrating the anniversary of the signing of Magna Carta in excellent style next year:

the four surviving copies of Magna Carta will be united for the first time, marking the 800th anniversary of the landmark legal document’s signing. During a three-day event at the British Library, visitors and scholars will get to see the quartet in one room. Currently, the Library holds two copies, while the others are at Salisbury and Lincoln Cathedrals.