MAGNA CARTA

800 years ago, on 15 June 1215, in a plashy meadow beside the River Thames in England, an event took place that would deeply affect the constitutional future - not only of the English people - but of countries throughout the world, including South Africa. On that day King John was forced by his barons to sign the Magna Carta - a document that introduced for the first time the notion that kings - and by extension governments - are ultimately subject to the Rule of Law.

It proclaimed that all free men were entitled in perpetuity to enjoy the liberties set out in the Great Charter. These liberties included most notably the proposition that “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.”

It also laid the basis for parliamentary control of the King’s power to levy taxes: “To obtain the general consent of the realm for the assessment of an 'aid' (i.e. a tax) ... we will cause the archbishops, bishops, abbots, earls, and greater barons to be summoned individually by letter. To those who hold lands directly of us we will cause a general summons to be issued, through the sheriffs and other officials, to come together on a fixed day (of which at least forty days notice shall be given) and at a fixed place.”

The Magna Carta also envisaged a more equitable system of justice. It stipulated that “In future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it” and that “to no one will we sell, to no one deny or delay right or justice”.

In several of its clauses it prohibited the King or his officials from arbitrarily seizing property. “No constable or other royal official shall take corn or other movable goods from any man without immediate payment, unless the seller voluntarily offers postponement of this.”

The Charter also recognized the growing power and autonomy of cities and towns: “The City of London shall enjoy all its ancient liberties and free customs, both by land and by water. We also will and grant that all other cities, boroughs, towns, and ports shall enjoy all their liberties and free customs.”

In addition, it recognized the independence of the Church by proclaiming that “the English Church shall be free, and shall have its rights undiminished and its liberties.” 

The barons clearly mistrusted King John and endeavored to give the Charter teeth in the event that he failed to honour his promises. It made provision for the election of 25 of their number “to keep, and cause to be observed with all their might, the peace and liberties granted and confirmed to them by this Charter.”

If the King failed to abide by his undertakings, the barons would have the right to “distrain upon and assail us in every way possible, with the support of the whole community of the land, by seizing our castles, lands, possessions, or anything else saving only our own person and those of the queen and our children, until they have secured such redress as they have determined upon. Having secured the redress, they may then resume their normal obedience to us.”

The barons’ distrust of King John was well placed. As we all know from A.A. Milne’s nursery rhyme

“King John was not a good man, and no good friends had he. 
He stayed in every afternoon… but no one came to tea.” 

When he signed the Magna Carta he clearly had his fingers crossed. No sooner had the ink dried on his signature than he appealed to his old opponent Pope Innocent to annul the Charter - pointing out that it affected the Pope’s own rights as King John’s feudal overlord. The Pope complied - declaring that the Charter was “not only shameful and demeaning but also illegal and unjust.”

However, the idea of freedom included in the Magna Carta was impossible to suppress. The Charter was reissued in 1216 following King John’s death - and was subsequently displayed on the doors of cathedrals and monasteries throughout the kingdom. Despite repeated breaches by tyrannical monarchs, it was reconfirmed and refined no fewer than 45 times in the 14th and 15th centuries.

During the 17th century, the Magna Carta provided the basis for the refutation of Stuart’s belief in the ‘divine right of kings’. It provided the basis for the Glorious Revolution in 1688 and was subsequently transported to the New World where its precepts were included in the constitutions of several of the colonies that later formed the United States of America.

The freedom from the arbitrary power of capricious rulers and the protection of private property that were ultimately based on the Magna Carta provided the environment in which Britain during the 18th and 19th centuries was able to achieve the status of a global power. 

The New South Africa is also heir to this tradition. Our Constitution includes provisions that have their roots in the Magna Carta:

- “Everyone has the right to freedom of security of the person which includes the right not to be deprived of freedom arbitrarily or without just cause” and “not to be detained without trial.”

- “No one may be arbitrarily deprived of property except in terms of law of general application and no law may permit arbitrary deprivation of property.”

- “Everyone who is arrested for allegedly committing an offence has the right … to be brought before a court as soon as reasonably possible.”

These rights remain important cornerstones of our own freedom.

King John was not a good man - but unwittingly and unwillingly he signed the document that would one day provide the foundation for freedom for people all over the world.

Dave Steward is Executive Director of the FW de Klerk Foundation