Two years ago, I attended a two-day Liberty Fund conference on Magna Carta. Today, I was glad to join The Freedom Association to commemorate the 799th anniversary of Magna Carta at the memorial.
Here’s an extended version of my speech:
Seven hundred and ninety nine years ago today this place witnessed a definitive moment in our history. A document was signed which asserted the rule of law.
It was not unprecedented – Henry I’s charter of liberties asserted much the same and itself relied on Saxon precedents.
It was not a grant from a wise and gracious king for he was an appalling monarch and those gifts were not his to give.
It was not the product of disinterested, altruistic liberals – the men who held King John to account were an elite at the peak of a feudal system.
It did not deliver equality for all before the law. Consider clause 34: “No man shall be apprehended or imprisoned on the appeal of a woman, for the death of any other man than her husband.”
It was quickly annulled when the treacherous King John appealed to the Pope to whom he had surrendered his sovereignty.
In so far as Magna Carta is the foundation of our laws and liberties, it is probably by accident. Magna Carta became a touchstone because it revealed the roots of our liberty in the rule of law.
What is the origin of this law?
Is it the prerogative of the King? No – if Magna Carta teaches us anything, it is that the British people will not be subjected to the arbitrary will of an individual in power by inheritance.
Is it the product of the reason of philosophers or the will of the people in Parliament assembled? No – this was not thought true until the 19th century and there was no Parliament at the time. Magna Carta was a confirmation of ancient practice – a restitution not an innovation.
That then is the origin of our law and the distinction between common law and civil law.
The law of our land is the body of practices which are common here. The authority of that common law lies not in elections or the grace of a sovereign. The authority of that law lies in the implied consent of long practice. It lies in the practical experience of countless thousands of individuals and the gradual development of beneficent rules since time immemorial.
Kings had ignored the charter of liberties of Henry I. The people sought the rights and liberties of the Saxons just as we look back to the rights and liberties we imagine were granted by Magna Carta.
The Saxons are not likely to have seized this country by extermination of the inhabitants but by intermingling. It seems to me likely that the will and spirit of the British people was not shaped only by some imagined system of perfect government transplanted from the German forests, but also by the echoes of the Roman system – the system of civil law.
Be that as it may, the evidence is that by the time of Magna Carta, the spirit and mind of the British people had long insisted that the end of the law was liberty and that all were subject to that law.
The magic of Magna Carta lies not in the whole of its content or the persons who were party to it. The magic of Magna Carta is that it revealed briefly and incompletely the primacy of the law of the land which is above us all.
If the end of that law is is liberty, why? Why should the English people by ancient custom and widespread practice prefer to live free to guide their lives on the authority of their own intelligence and will and not subject to the will of another?
Liberty works. In every nation where liberty has been extended, however imperfectly and incompletely, the condition of the people has improved. The richness, complexity and productivity of human relations has risen. The people have become more prosperous, more peaceful and more civilised. Liberty works.
And liberty is moral too – for liberty involves the freedom to do what is right.
That is human dignity: to be free to choose to behave as one should towards others. The fullest realisation of freedom is to actually do what is right and so realise our full moral worth as individuals in right relationship with one another.
Despite all our flaws, despite all the vices to which individuals succumb, therein lies the root of our law and our liberty.
Now we live in a time with three important problems:
First, the state’s social protection budget alone is about £16,000 per person in poverty per year. There should be no poverty and yet even in Wycombe people go homeless and hungry and too many offenders continue to offend.
Second, we cannot afford it. Last year the state overspent by about £108bn – the education budget was £91bn. We spent more on debt interest than defence.
Third, in so far as we have been able to afford state welfare for 40 years, it has been by debasing the currency through the issue of new debt. Between 1997 and 2010, the money supply tripled through the creation of credit. And we wonder why we are in a debt crisis, why wealth inequality arouses such a spirit of jealousy and injustice – why the housing market is now so deranged.
The guiding principles of our age have become expediency and ambition as our leaders wrestle to prop up a social system which cannot last. HMRC is about to receive powers which are not acceptable in a free society. Easy money has been used to avoid too deep a crisis and instead create a longer one. As one local estate agent reports to me price rises of 15% since March, I am asked to believe our recovery is based on solid ground.
Our society is in the process of exhausting all other possibilities before doing what is right.
Let us remember that when Thomas Jefferson said “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants”, he was inspired by Viscount Bolingbroke writing about our own ancient constitution:
“Tho’ the Branches were lopped, and the Tree lost its Beauty for a Time, yet the Root remain’d untouch’d, was set in a good Soil, and had taken strong Hold in it; so that Care and Culture, and Time were indeed required, and our Ancestors were forced to water it, if I may use such an Expression, with their Blood; but with this Care, and Culture, and Time, and Blood, it shot again with greater Strength than ever, that We might sit quiet and happy under the Shade of it; for if the same Form was not exactly restored in every Part, a Tree of the same Kind, and as beautiful, and as luxuriant as the former, grew up from the same root.”
In this place, 799 years ago today, amid dark days indeed, a bad king signed an imperfect document which became the touchstone of the heights of human flourishing.
The day will come when we will again have restitution in our country. Our society will be based on liberty under the law, virtue and love for our neighbour. Love may be the greatest of these, but it is not possible without freedom.
That is why there is one British value which soars above them all and one document which stands above them all in the long development of that value. The value is liberty under the law and the document Magna Carta.
- The Rule of Law by Tom Bingham, Reprint edition (2011) – for a pithy statement of the value of Magna Carta and the debunking of certain myths
- David Hume, The History of England, vol. 1  – especially in relation to Saxon England, King John and the circumstances around the sealing of Magna Carta
- Roots of Liberty: Magna Carta, Ancient Constitution and the Anglo-American Tradition of Rule of Law – especially the essay on the jurisprudence of liberty
- How We Invented Freedom & Why It Matters by Dan Hannan
- A Brief History of Liberty
- Principles for a Free Society, Dr Nigel Ashford – a short, readable explanation of the principles of a free society available in 8 languages