The triumph of an idea

While the world, particularly the United Kingdom and the members of the common law family, gaze at the eighth centennial celebration of the Magna Carta in 2015 with admiration, there are many who are scratching their heads to find out the reasons for the astounding endurance of an innocuous looking Charter which is in no way comparable to the modern day well-drafted grand Constitutions. We may explore: what should the Magna Carta mean today for the present and the future generations? The history of birth of the Magna Carta is quite fascinating like a fairy tale. On 15 June 1215, a drama unfolded on the battlefield at Runnymede in England when the barons made King John a captive of them to force him to sign a one sided peace treaty i.e. the Magna Carta running into 63 clauses/chapters. The barons were annoyed with the style of functioning of John who violated the norms of the feudal system/law. The barons were under an obligation to provide men and money (tax) to the king for war and other purposes. The traditions of the kingdom required the king to consult the barons before raising revenue and demanding men for military services. John lost battles in France and in order to carry on his expensive war expeditions, he raised the revenue without consulting the barons which offended them. About a decade ago, John had also incurred the wrath of the Catholic Church by confiscating their property and unduly interfering in their religious matters; as a result Pope excommunicated him in 1209. John not only knelt down before Pope but also granted new privileges to the Church. Through the Magna Carta, the barons attempted to put a check on the arbitrariness of the king.  The barons forced John to put his seal on the Magna Carta which was drafted by the chancery clerks (some argue that John did not sign it). For drafting Magna Carta, the inspiration was drawn from the Charter of Liberties issued by King Henry I in 1100. Within weeks, both the sides withdrew from it. Pope nullified it as it was procured by intimidation. It was never implemented. Meanwhile, the barons invited the French king to invade England but John died next year in 1216; his death allowed the spirit of the Magna Carta to stay alive. The Charter was resurrected, revised and reissued many times. It was confirmed by the Crown more than 30 times. Many versions of the Charter appeared in 1216, 1217, 1225, 1265 1297 and 1300. The academicians numbered the clauses/chapters of the Magna Carta for the convenience of reference.  The legal jurisdictions of the royal, ecclesiastical and baronial systems were in rivalry at the time of making of the Magna Carta because of the stubborn attitude of King John. The Catholic Church, through the ecclesiastical courts, maintained its sway over moral, matrimonial and testamentary matters. The baronial courts decided the matters relating to land and involving the barons’ tenants and the poor people who worked on the land to earn their livelihood. The royal courts of the Crown enjoyed a vast and loosely defined jurisdiction over all the matters which affected the monarch’s peace. Prior to the rule of John, English Law had become a collection of customs and traditions of different ethnic groups, now part of common law, which came to be administered by a centralized justice system managed by the monarch’s officials; but the king enjoyed mammoth power of dispute resolution. The barons expected common law of England to operate equally among all the fellows who were equal in status. During the reign of John, the hopes of the barons for an equal treatment in accordance with the law of the land were grossly belied by the king himself. The barons protested against the arbitrary use of the royal, legal and judicial processes by John.  King John had been using the judicial process as a tool to fill his coffers for a long time. He punished and exploited his political adversaries by misusing the judicial process which was regulated by his own men. John entertained the presumption of guilt against the accused so strongly that sometimes he, without waiting for the conclusion of the court process, used the royal power to execute his own brand of justice. There were no fixed principles on which the trial of the accused could be conducted. The criminal trial was whimsical and, because of the biased attitude of the royal judges, the barons and the people suffered injustice. The barons demanded and incorporated the right to trial by ‘lawful judgment’ or by the ‘law of the land’ in Clause 39 of the Magna Carta. Clause 39 put a restriction over king’s acts of abuse of the judicial process. In Clause 39, one can see the beginning of the system of trial by jury. The word ‘jury’ was not used in the clause; instead ‘lawful judgment of his peers’ was used. This right to have judgment by his equals or peers gradually culminated into a right of ‘trial by jury’. Some historians and academicians have noticed the absence of the term ‘jury’ in Clause 39 and they opine that this clause cannot be tantamount to granting a right to be tried by jury within the words of the Charter. However, the method of trial as such changed considerably after 1215 and the ‘trial by ordeal’ went out of fashion. The clergy was forbidden from taking part in the process of trial. Later on, the remarkable change in the composition of the body which participated in the trial process made the difference. The new structure, no doubt, contributed to the growth of the practice of trial by jury. In times to come, it was recognized as a basic right. The makers of the US Constitution accorded to the ‘right to trial by jury’ a place in the Bill of rights.  The Charter did not talk about ‘habeas corpus’. The Magna Carta pledged to disallow the continuance of detention or imprisonment of a free man under Clause 39 if that was not in accordance with ‘the law of the land’. The pledge was step by step fulfilled through the innovative process of habeas corpus which vested power in the courts to determine the legality of the detention or incarceration of a free man by the Government. The Charter, through clause 38, also bid a good bye to the practice of the officials putting any one on trial on the basis of their own unsupported statements. The Clause also restricted the crooked and undue practices of selling justice to the affluent sections of the realm. The mandatory requirement of the production of the ‘credible’ witnesses to verify the truth of the official statement against the accused under Clause 38, presented a real protection to the common man. The issue of proportionality of punishment was also addressed in the Charter. Before the release of the Magna Carta, the severe punishment or heavy fines could be imposed even for very trivial offences. But Clause 20 assured: “for a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but no so heavily as to deprive him of his livelihood…” This is a revolutionary paradigm shift so far it relates to the issue of quantum of punishment being linked with the gravity of the offence and not basing it on the whims of the judge or the ruler. The Americans and the people world over trace the origins of ‘trial by jury’, habeas corpus and ‘due process’ in the Magna Carta. In fact, clause 39 of the Charter may be hailed as the ‘English version of due process’.  King John was in the habit of selling justice to the highest bidder or to his favourites. The privileges and rights were sold out by him. Judicial bribes for securing a favourable verdict were the order of the day. Justice was available with a price-tag. As a matter of routine, the justice was delayed or denied to the barons and they were piqued at the high selling price of justice. Litigation fee were imposed by King John in an arbitrary manner. The favourites of the king managed to escape by paying a minimal or less fee. The political adversaries had to cough out a heavy sum as the payment of monarch fee for securing justice in the royal courts. John was always in need of emergency revenue for financing wars and he unabashedly collected heavy sums from the litigants in the royal courts. There was a feeling that the payment of heavy sum could influence the outcome of the case. The defendants who lost their cases could purchase their freedom by paying to John a capriciously imposed sum. Clause 40 assured that to no one, right or justice will be sold, denied or delayed. By putting Clause 40 in the Magna Carta, the barons ensured that the king lost his power to discriminate, harass and victimize them and consequently, the people of the realm were no longer to look for the mercy or whims of the king for the determination of their innocence or guilt, whatever it could be, in the courts. It indicated the beginning of an epoch of non-discriminatory and non-arbitrary justice delivery system. In later years, this provision served as bedrock for guaranteeing equal, fair and impartial justice to every person.  The Magna Carta emphasizes the significance of the entrenched rights of the people, though rights were initially made available to aristocracy and ‘free men’ only. An amazing aspect of the Charter is that the concerns of the vulnerable sections of the society like merchants, mercenaries, hostages, widows, surviving children, wards, heirs, and foresters also got reflected in it, though in a small measures. A widow could no longer be forced to remarry or deprived of her inheritance (Clauses 7 and 8). The English Church and the city of London still enjoy the freedom and the rights as accepted under the Magna Carta. In later centuries, the Magna Carta was destined to become a guiding light post symbolizing the triumph of justice, freedom and basic rights of the suppressed people over the tyranny of the hegemonic classes.  The Magna Carta foreshadowed an era of a legal culture in England making all the persons accountable to the legal process. Even king could not act according to his desires. In seventeenth century, Sir Edward Coke, a celebrated jurist of England, questioned the power of the Crown to claim royal prerogatives on the strong basis of the Magna Carta. The Magna Carta, thus, assumed the status of an over-brooding super-statute which shaped, to use the Indian constitutional phraseology, ‘the basic structure of the English constitutional system’.  The Charter demonstrates that the law is the King of all the kings. It is a declaration of ‘rule of law’. It gives the message of the significance of the ‘consent’ of the governed in a polity, and generates an idea that ‘legitimacy’ of governance is based on a ‘bilateral’ contract between the rulers and the people. The rule of ‘no taxation without representation’ (Clause 12) is the foundation of every democratic government. One can decipher the seeds of constitutionalism in this Great Charter. (Constitutionalism means a ‘limited government’.) The separation of judicial functions from the executive ones (Clause 24) enriched the idea of separation of powers and it also paved the way for judicial independence. The legacy of the Magna Carta, coupled with the inherited British legal traditions, equipped the Americans of the British colonies in North America to imbibe a culture of distrusting the concentrated political power. The state power even in a democratic polity needs to be viewed with sagacious suspicion. The logical regulation and monitoring of power is a good sign for any lively and healthy democracy. The later generations of the people across the globe crafted various mechanisms to regulate state’s power; be it judicial review, ombudsman (Lokpal), separation of powers, or deeply ingrained human rights etc. The idea of civil society monitoring the acts of the state through agencies like Lokpal or the Comptroller and Accountant General (CAG) is traceable to the Magna Carta as the 25 barons under Clause 55 could hold the Crown ‘accountable’ for failure to return all fines unjustly extracted.  There is not so much to figure out in the plain meaning of the words of the Magna Carta. No one can deny that it was a localized bargain between the despotic John and selfish barons but the political and legal history tells us that this precious document became an intoxicating weapon in the hands of the activists to fight against the injustices, oppression, exploitations and misrule by the state. The Magna Carta, written in a murky, broad and administrative language, remains open to over-generalization. But its message can be captured in its soul which is like a deeply-dug well-spring, full of unfathomable promises for the common people. The Magna Carta refers to ‘free men’ who did not include a common man but it radiated the noble principles of governance which inspired the people at large for making claims against the state. It may be taken as the ‘birth certificate of democratic governance’. In no uncertain terms, it did also put up an agenda in front of the rulers for initiating legal, administrative and judicial reforms.  The drum beats of the Magna Carta spread its music in the colonies of Great Britain and elsewhere. The Magna Carta deserves to be cherished as the rich heritage of mankind.

Author Name: Dr Subir K Bhatnagar