The Human Rights Act (1998), which enacted the European Convention of Human Rights (1950), has been in the firing line almost since it was passed. Some opposition is rooted in its ability to protect dangerous suspects, like giving alleged terrorists the benefit of a fair trial or delaying their extradition. For others, dislike is linked to anti-EU sentiments even though the convention is a product of the Council of Europe and predates the European Union. How many of its staunch opponents, however, realise that the right to a fair trial and due legal process, re-affirmed by the Human Rights Act, are actually products of our past? Not just a footnote of English history, but documented in one of the most famous legal treaties in our history.
Exciting the public about old legal documents may be a challenge but it is one the British Library has risen to successfully with its major new exhibition Magna Carta: Law, Liberty and Legacy, timed to coincide with the 800-year anniversary of this famous document.
The first half of the exhibition is devoted to history and art, or rather a power struggle depicted in words and artefacts laid out chronologically in a long hall. A range of vellums and books containing diligent calligraphy, some illustrated with blue, red and gold illuminations, tell of a time of upheaval. An illuminated genealogy introduces a king who inherited a great empire. The Conquest of Ireland by Gerald of Wales and The Great Chronicles of France tell of a monarch who lost great swathes of land due to his poor judgment and personality issues. Wooden tally sticks testify to a time of burdensome taxes.
The king in question was King John, son of Henry II, celebrated for his feats at Agincourt, and brother of Richard the Lionheart, famous from the Crusades. King John, however, nearly bankrupted the country with catastrophic military campaigns, exacting ever greater taxes from his subjects and imposing arbitrary judgments on the barons and commoners, as alluded to in The Dialogue of the Exchequer, written by a meticulous civil servant. Not surprisingly the barons rebelled and forced King John to sign a peace treaty at Runnymede in 1215.
At this stage of the exhibition we do not see the famous charter. We learn from other documents of its signing and how, much like the Human Rights Act, it was contested almost before the ink had dried. A sealed papal bull, which looks as if it still bears the folds from being in the messenger’s document roll, annulled the charter within ten weeks.
We’re introduced to the content of Magna Carta by the 1225 and 1297 versions, which were accepted by Henry III and Edward I. The wide parchments with small, dense calligraphy deal with the minutiae of medieval laws (like the treatment of widows and the introduction of weights and measures) and would probably only interest the most avid legal historians. The charter may even have passed unnoticed were it not for a three key provisions: one that protects the Church (article 1); another that limits the right to impose taxes without general consent (article 12); and, most significantly, one that prohibits anybody from being imprisoned, exiled or condemned without trial by his peers or in accordance with the laws of the land (article 39).
Magna Carta was not unique in its time. Similar documents, providing for a right to a fair trial and due legal process, had been signed elsewhere in Europe, such as the Statute of Pamiers (1212), a little pompous-looking with its six seals. Whilst many such documents have disappeared into obscurity, Magna Carta has become iconic, almost shorthand for the rule of law. Why?
Although many declarations acknowledge fundamental liberties, Magna Carta remains a rallying point for many fighting for the rule of law.
The second half of the exhibition, arranged over separate rooms allocated to different regions and eras, attempts to answer this question by examining how Magna Carta has been invoked, appropriated and misused down the ages. One of the first references to Magna Carta is found over three hundred years after the events at Runnymede, in the context of the trial of Sir Thomas More. The accused statesmen wrong-footed the prosecution by citing Article 1 of the Great Charter. Protection of the Church may seem an archaic notion these days but Thomas Cromwell was sufficiently concerned that he made a note in his hand-scribbled Rememberances to check how the old charter had come into law.
In his controversial Second Part of the Institutes of Lawes, ornately published in 1642, Edward Coke, Chief Justice under James I, included a clause-by-clause review of Magna Carta. His understanding of the importance and relevance of the charter is also evident in the Petition of Rights (1628), which was forced upon Charles I and restated the principle of the rule of law. The English Bill of Rights, one of the last official manuscripts in the exhibition, which William and Mary accepted on their ascent to the thrown, affirmed without further reference to Magna Carta the now familiar concepts of rule of law and the restriction on raising taxes unless approved by Parliament.
At this stage the exhibition leaves Britain as these concepts are exported around the world. Thomas Jefferson was inspired by article 39 of Magna Carta when drafting the American Declaration of Independence (1776): he referred to Britain as an unjust ruler imposing arbitrary measures without reference to due legal process. Jefferson’s handwritten draft of the declaration is particularly inspiring – evidence of how a real person conceptually connected with the medieval charter. Magna Carta’s influence on the American legal system goes further. Articles 5 to 7 of the United States Bill of Rights (1791) protects people from being deprived of life or liberty without due process of law and could have been lifted from the Magna Carta. The presence of the Delaware copy of the Bill of Rights at the exhibition, on loan to a foreign country for the first time ever, is testament to the Americans’ high regard for Magna Carta.
Later on we see a copy of the Universal Declaration of Human Rights (1948), open at Articles 9 and 10, and the European Convention on Human Rights (1950), open at Article 6. Neither may look as imposing as the 18th century American documents but reading the articles it is clear just how much they owe to Magna Carta too.
Although many declarations and charters of the last 250 years acknowledge fundamental liberties, Magna Carta remains a rallying point for many fighting for the rule of law. In the penultimate rooms of the exhibition broadsheets and newsreel show how people like Ghandi and Mandela in South Africa and Aung San Suu Kyi in Burma invoked the spirit of the Great Charter. These rooms also explore how Magna Carta has been invoked in the defence of more dubious characters. In a handwritten letter Lady Redesdale cited Magna Carta when arguing unsuccessfully against the detention without trial of Oswald Moseley and Nancy Mitford for national security reasons. By contrast, the recent judgement of the US Supreme Court in Lakhdar Boumediene’s appeal against being held without trial at Guantanamo Bay shows the judges calling a writ of habeas corpus “the means by which the promise of Magna Carta was fulfilled”.
The sheer longevity of the right to a fair trail suggests the idea of an innate right.
Why does a charter dating back to 1215 hold such appeal, even when more sophisticated legal provisions are available? Why does the British Library treat its two original copies of Magna Carta with such reverence, revealing them only in a darkened room at the end of the exhibition?
Perhaps in some countries it is more persuasive to invoke Magna Carta rather than international conventions because the former is not associated with parliamentary democracy, a form still unpalatable in many places around the world. Or perhaps, even for democracies, the sheer longevity of the right to a fair trail is attractive, suggesting it may be an innate right.
Would the principle of the rule of law exist were it not for the Magna Carta? Did the Great Charter grant that right or merely articulate what a certain section of society deemed to be just? This is a question of legal philosophy. When acting for a client, a lawyer’s job is to understand the letter of the law and how it has been interpreted. Perhaps the answer to the philosophical question lays not in the words themselves or even how they have been used, but that people have felt moved to use them at all.
The barons used the occasion of King John’s disastrous reign to force him to accept principles, large and small, including a point that was gaining currency across Europe. When statesmen, lawyers, philosophers, even satirists invoked Magna Carta in the next 800 years, maybe they were not just scoring judicial or political points but declaring that the right to a fair trial and a compact between ruler and people were still relevant to their society; that these ideas mattered, that they are a hallmark of a fair society, even if they are open to misuse. Maybe that is why we still stand in awe in front of a faded, densely drafted, 800-year old manuscript.
Magna Carta: Law, Liberty and Legacy is at the British Library until 1st September 2015.
Image credits (from top to bottom):
Magna Carta, London copy, 1215, on display in Magna Carta: Law, Liberty, Legacy. Photography © British Library
Miniature of King John hunting, in a manuscript of the Liber legume antiquorum regum, C14, on display in Magna Carta: Law, Liberty, Legacy. Photography © British Library
The Delaware copy of the US Bill of Rights on loan from the US National Archives in Magna Carta: Law, Liberty, Legacy. Photography © Clare Kendall