INDIA WAS SPARED OF THE CONFLICT OF LAWS, BECAUSE IT HAD VISIONARY SULTANS. ILTUTMISH SEVERED HIS CONNECTION WITH THE CALIPHATE AND REFUSED TO IMPOSE SHARIA ON HIS HINDU SUBJECTS.
MONTFORT RALLIED THE BARONS AND FORCED THE KING TO REISSUE MAGNA CARTA TWICE BY WHICH THE KING AGREED TO HAVE A COUNCIL OF 15 BARONS ABOVE HIS OWN ADVISORY COUNCIL.
AFTER LANGTON, FITZWALTER AND MONTFORT, LIBERTY GOT A NEW KNIGHT TO DEFEND IT: SIR EDWARD COKE, WHO WORE NO SWORD OR LANCE, BUT WAGED HIS BATTLES WITH PURE REASON.
ENGLAND had, as kings, eight Edwards, eight Henrys, six Georges, four Williams, three Richards, two Charles and two Jameses. But only one John has ruled England since the Norman conquest of 1066. No king has ever named his son John since 1215.
MAGNA CARTA will remain the greatest blot on William Shakespeare. The bard, who wrote 11 plays on the lives of eight English kings, did not mention Magna Carta even once—not even in his play on King John!
KING JOHN belonged to the Plantagenet dynasty, established by his father, Henry II. They were called so because they adopted plante de genet or the broom plant as their family emblem.
ARCHBISHOP Stephen Langton, who gathered the rebel barons, has another feather in his cap. He was the one who arranged the chapters of the Bible in the manner we see them today. He did it 400 years before the Authorised (English) Version was written.
A VERSE account of Magna Carta has been found in The Chronicle of Melrose Abbey in Scotland. The chronicler got information about Magna Carta from Allann of Galloway, the Constable of Scotland, who is named in Magna Carta as one of John's counsellors.
Once upon a time, a bad king by the name of John ruled England. He imposed unjust taxes on his barons and knights, took over the lands of the church, and let his corrupt sheriffs persecute the common people.
The abbot of the holy cathedral of Canterbury, where an archbishop, Thomas Becket, had been murdered a few years earlier by the knights of John's father, King Henry II, opposed the king's unjust ways. One day the king called the abbot, put three questions to him, and gave him three weeks to find the answers, failing which he would take over the church lands. The questions were:
How much am I worth?
How long will it take to travel the whole world?
What am I thinking?
The abbot approached all the wise men of England, but none could help him. Crestfallen, he walked into an inn where he met a shepherd, who promised to help.
On the appointed day, the shepherd, dressed in the robes of the abbot, went to the king, and gave the answers.
“Your Majesty is worth 29 silver.”
“How have you valued your king?” John asked.
“Our Lord was sold for 30 silver. Your Majesty is nearly as good as our Lord. So you are worth 29.”
The king was flattered.
The shepherd went on. “If you rise with the sun and travel with the sun, you would travel the whole world in one day.”
The king agreed.
“Your Majesty thinks that I am the abbot of Canterbury.”
“Yes,” replied John.
“I am not. But Your Majesty said yes to me.”
Outwitted, the king had to spare the abbot and the church lands.
A stupid story made popular by a ballad, yet pregnant with historical clues! There, indeed, was a King John who ruled England from 1199 to 1216. He was bad; he imposed unjust taxes; he seduced his knights' maidens; he murdered his young nephew; he appropriated church and shire lands; he clashed with his barons and the bishops, particularly with the archbishop (not abbot) of Canterbury. He lost battles; he lost England's territories in Normandy to France. They called him John Lackland.
There is a more intelligent version of the story, or at least a more intelligent version of the answer to the first question, “How much am I worth?”
“Your Majesty is worth 29 sovereigns,” said the abbot.
“How have you valued your king?” John asked.
“Your Majesty's crown is 10 sovereigns. Your Majesty wears on his person jewellery worth 15 sovereigns. The value of Your Majesty's robes would be 3 sovereigns.”
“You are right, abbot,” quoth the king. “But these add up to 28 sovereigns only.”
“Add yourself, Majesty. You are a Sovereign!”
The king was sovereign, till John signed Magna Carta. Today, in the English-speaking democracies, including India, the people are sovereign. The erosion of sovereignty, from the king to the people, began with Magna Carta. A slow erosion, which took centuries.
There had been laws before Magna Carta. Laws that had been given by benevolent kings and leaders to their people: Moses to the Jews, Manu in India, Hammurabi in Mesopotamia, Confucius in China and Justinian in Rome.
Unlike the laws of Manu, Moses, Hammurabi, Confucius or Justinian, Magna Carta was not given. It was demanded and taken—from the king, by his people. They “wrung their charter” from the king, pointed out Krishna Chandra Sharma in the Indian Constituent Assembly.
Magna Carta is the oldest known document where a king signed subjecting himself to law. In Magna Carta, the king agreed that his will was not necessarily the law. In Magna Carta, the king agreed that the law, though given by him, was above him. In Magna Carta, it came to accepted that 'howmuchever' high you are, the law is above you. With Magna Carta began the 'concept' of the rule of law.
The king agreed not to tax without the consent of his subjects. He agreed that justice will not be sold and that an arrested person will have a right to be heard in open trial. Magna Carta, said the celebrated 20th century English judge Lord Denning, was “the greatest constitutional texts of all times—the foundation of the freedom of the individual against the arbitrary authority of the despot”.
England had laws long before John and Magna Carta. Anglo-Saxon law, as the law followed in India and most of the Commonwealth today is called, had its origins when the Anglo-Saxons were ruling England, centuries before John. “Delegated courts in each shire were ruled ultimately by the sovereign authority of the king,” says historian Nicholas Vincent of the University of East Anglia. King Ethelbert of Kent had codified laws in 597. Alfred the Great, Ethelstan and King Canute (the one who commanded sea waves to stand still), all Anglo-Saxons, had also given laws to their people.
The Normans under William the Conqueror invaded England in 1066, an invasion that could be likened to Mahmud Ghazni's invasion of India around the same period and to Muhammad Ghori's few years later. “Thereafter, England's Norman kings came to terms with English law,” says Vincent. They reissued the old Anglo-Saxon codes, just as Ghori issued coins carrying the image of Goddess Lakshmi. In 1100, Henry I issued a coronation charter promising to uphold the pre-Norman laws of his Anglo-Saxon ancestor Edward the Confessor.
The clash of civilisations was beginning. As Muslims captured Jerusalem, the pope in Rome called for crusades. Great kings, knights and barons left their homelands in Europe to fight in Palestine. In the east, the ummah was consolidating under great caliphs and sultans who imposed sharia. In Europe, the church began asserting its authority to consolidate Christendom; kings began to resent the bishops interfering in temporal laws.
India was spared of the conflict of laws, because it had visionary sultans. Iltutmish severed his connection with the caliphate, declared himself national king, and refused to impose sharia on his Hindu subjects. The ruthless Allauddin Khilji, a few years later, even humiliated qazis and maulvis and asserted the supremacy of the state over faith.
In England, the process was slower and violent. The first conflict took place between John's father, King Henry II, and Archbishop Thomas Becket of Canterbury, the head of the English church. Henry was fighting in France when he heard that, back home, the archbishop was defrocking the priests who had been loyal to him. In a fit of anger he cried out, “Will no one rid me of this turbulent priest?”
Four rowdy knights took his words seriously. They sailed to England, rode to Canterbury, and stabbed the bishop to death in his cathedral, where he was kneeling at prayer, four days after the Christmas of 1170. Centuries later, T.S. Eliot would immortalise the incident in Murder in the Cathedral.
In India, too, a similar clash between an emperor and a saint took place around the same period, but with different results. Sultan Ghiyasuddin Tughlaq of Delhi clashed with Saint Nizamuddin. The amirs (barons) supported the sultan; the saint had the backing of the people. The sultan, campaigning in Bengal (like Henry in France) plotted to murder the saint upon his return to Delhi. When the saint heard about it, he said, “Delhi is still distant.” The sultan, returning from Bengal, was killed outside his city gates by the machinations of his son Muhammad bin Tughlaq.
The murder in the cathedral shocked Christendom. The whole edifice of the church was now on Henry II, and he performed penance at Canterbury. The dead Becket showed miracles, and people began going on pilgrimage to Canterbury. Pilgrimages those days used to be slow progress: walking, riding and camping. At camps they told stories to kill boredom. Geoffrey Chaucer's Canterbury Tales, which marked the beginning of 'modern' English literature, is a collection of about 20 such stories.
Henry II, now reformed, ruled England wisely for another 18 years. He introduced trial by jury in place of trial by duel or ordeal. In place of arbitrary rule by the barons, there emerged the common law, applicable to every man and woman, lord and serf, and followed even in India today. According to G.M. Trevelyan, England's best social historian, “The greatest of many benefits that Henry II conferred upon England was legal reform. The new judicial procedure that he introduced was destined to shape the future of English society and politics, and to give distinctive habits of thought to all the English-speaking nations”, including India. “The common law,” according to Trevelyan, is “the great inheritance of the English-speaking nations.”
Henry's elder son Richard I succeeded him in 1189. No king in the history of England has been glorified more than Richard for his valour. Called the Lionheart, Richard had his heart in the battlefields of Palestine. When the pope called for the Third Crusade, Richard joined it, leaving England in the care of Prince John and a council of justiciars, headed by the wise Hubert Walter who tried his best to curb the waywardness of the younger prince.
In the Holy Land, Richard crossed swords with Saladin, Islam's greatest sultan. The crusaders could not free the Holy Land from the Muslims, but the Third Crusade ended in a treaty of mutual respect by which Saladin retained control of Jerusalem, but would let Christians in as pilgrims. For the next seven centuries no Christian commander would enter Jerusalem till Gen Edmund Allenby of the Indian Army in the First World War.
On his return, Richard was captured by rival Christian rulers in Europe and passed on from duke to duke and king to king. The great knights and lords of England were humiliated. They finally raised the ransom and rescued their king.
It is said Richard returned to England incognito to check on his brother. Didn't he need checking? Without a king, England had gone to the dogs. Sheriffs were fleecing the common people (see the story on Robin Hood on page 46), and many among the gentry had been robbed of their lands. John was corrupt. His regnal records show he accepted 200 chickens from a forester's wife to allow her to sleep one night with her husband. Richard returned as king, but he died in 1199 in a shooting accident. John succeeded him, and began his misrule.
The barons were already reeling under heavy taxation. “There were arrears in the payment of scutage from Richard's reign, and more money was needed to fight the French...,” says Winston Churchill in A History of the English-Speaking Peoples. John imposed more taxes. The barons got restless.
John also clashed with the pope. He refused to recognise the pope's nominee, Stephen Langton, a man of great scholarship, as the archbishop of Canterbury. The pope excommunicated John and put England under interdict, freezing all church services, including baptism, marriage and confessions. To the common people, this meant their destiny after death was hell. They cursed their king.
John bought peace from the pope. He made England a fief of the papacy in 1213, and agreed to abide by the laws of his ancestors. The pope pardoned him. But John had no intention of keeping his word. He broke every word he had made to the pope. The angry barons appealed to the pope. But the pope, playing his own politics, now backed John. He excommunicated the rebel barons.
Meanwhile, King Llywelyn the Great of Wales captured John's border castles. John's army in Europe, which was fighting alongside the Germans against the French, lost in the battle of Bouvines. As the barons, led by Robert Fitzwalter, since hailed as the first champion of English liberty, revolted, John locked himself up in the Tower of London. The city seethed.
John was gathering enemies with his vile acts. He sold his own wife! He had annulled his marriage to his first wife, Isabella, in 1199, but kept her under his guardianship. In 1214, he 'sold' the right to marry her to Geoffrey de Mandeville for 20,000 marks. Geoffrey married her, but could not pay the sum in full; John confiscated his lands. Geoffrey and Isabella joined the rebels. “He took women as well as children hostage against the repayment of debts owed to the crown and to help ensure the good behaviour of their kinsmen,” says Dr Louise Wilkinson of Canterbury Christ Church University who is now digitising Magna Carta. “He went so far as to starve Matilda de Braose to death in Windsor Castle after her husband fell out of favour with him and fled to Ireland and then Wales.”
Archbishop Langton now feared that the barons might force the king out and kill him. He called a conference of bishops and barons, and suggested that they ask John to revive a coronation charter issued by Henry I. Ask for specific liberties, Langton suggested to them, in the name of “the community of the whole land”. In modern English, it would mean, ask for liberties “in the name of the people”. The king and the barons parleyed in the castle of Windsor in June 1215. They called a truce.
On June 15, John rode into the meadow of Runnymede on the banks of the Thames. There, sitting on a makeshift throne in a tent, King John Plantagenet signed a 61-clause charter, which limited his powers to tax, freed the church, and even laid down procedures for criminal trial.
Clause 12 stated that no scutage or aid would be levied except by the common counsel—the earliest version of the modern principle of 'no taxation without representation'. Clause 39 declared that no free man shall be arrested or imprisoned except by lawful judgment of his peers or by the law of the land—the precursor to habeas corpus and the right to fair trial, both of which constitute the bedrock of modern liberal law. The charter prohibited the king from 'selling' justice, and officials from appropriating goods from people without payment. Copies of the document, written on sheepskin, were despatched to various cathedrals and shires.
But John cheated again. Once the rebellion subsided, John got the pope to declare Magna Carta null and void, saying it had been extracted under duress. The barons, too, took to arms, and thus began the great barons' war.
A little known aspect of the barons' war was that it was one of the first European wars in which humane rules of war conduct were followed. The story goes like this: Baronial leader Robert Fitzwalter captured the great castle of Rochester and left a garrison there to block the king's supplies to London. John laid siege to it, but the barons held on valiantly. Finally, John asked his captain to get 40 fat pigs which were unfit for eating. With the pig fat, he raised a fire under the tower. The turrets came down; the royal troops entered the castle and captured the rebel barons.
When John moved to put them to death, his captain advised: “Lord king, we have not yet won the war. I beg you to consider what different turns a war can take. If you make us hang these men, the barons fighting against us will not hesitate to hang me or your other nobles when they get the chance.”
For once, John listened to reason. The only man who was hanged in the war was a crossbowman, for a non-combat offence.
The barons sought the help of John's enemy, Prince Louis of France. In 1216, Louis landed in England and marched into London. From the north, King Alexander II of Scotland captured Northumbria and marched south. In the west, Llywelyn of Wales sliced away more of England's territories.
John, now a fugitive in his own land, rode from shire to shire, extracting aid or burning down towns. One day in October 1216, he set out from Lynn in Norfolk, at the head of a baggage train containing his crown jewels, household treasures and his plunder. The party was crossing an estuary when the carts, heavy with treasure, sank into the mud. The tide swept in. John swam to safety, but most of his men and horses were drowned. A week later, he died of dysentery, after eating too many peaches. Some say, the peaches had been poisoned. “Hell is foul; it has been made fouler now” with John's entry, wrote a chronicler.
The content of the treasure train, including the 'sovereign' crown of England, still lies deep in that estuary mud. Local people say they can sometimes hear the plaintive sobs of drowning men and neighs of drowning horses in the sea winds there.
When John knew his death was near, he wrote his will, which is today kept in the archives as England's oldest royal will. He asked his most trusted knight, William Marshal, the earl of Pembroke, to ensure that his minor son Henry III succeeded him.
The noble Pembroke kept his word. Like Bairam Khan, who got the kutba read in the name of 12-year-old Akbar in Gurdaspur when he heard that the Mughal emperor Humayun had died in Delhi, Pembroke took the nine-year-old Henry to Gloucester Cathedral and crowned him with a ringlet of gold.
England and English law owe much to this great earl, hailed as England's greatest knight. Realising that the French prince was still gathering forces in England, he appealed to the barons to rally under their new liege. It was their chance to make him abide by the charter his father had signed, he told them. In a remarkable turnaround, the barons who had invited Louis, now turned against him. They defeated him in the battle of Lincoln.
Bairam Khan would do something very similar in India three and a half centuries later. When the warlord Hemu seized the throne of Delhi after Humayun's death, Bairam appealed to the amirs to come to the aid of their new young liege, Akbar. Together, they defeated Hemu in the second battle of Panipat.
Pembroke died in 1219 a contented man. He had kept his promise to his king: he had saved the crown, the realm, England and the liberal law. As F.W. Maitland, England's greatest constitutional historian, observed, now “there is to be a reign of law”.
When this writer met Sir Robert Worcester, chairman of the Magna Carta Memorial Committee in London, he said: “If you have come to London to research on Magna Carta, don't go back without visiting the great knight in Temple Church.” Pembroke is buried in the church, built by Knight Templars in Strand, London, diagonally facing the Royal Courts of Justice.
The reign of law had to face several more battles. As he grew into majority, Henry asserted royal power and revised the charter on the advice of his mother's French kinsmen. In 1253, the king needed money for his war with France. He summoned a council, which he called parlement (French for 'talking council'), to which he invited not just barons and bishops but also representatives from shires. In the 'first parlement', which met at Easter in 1254, the lords and the commons from the shires sat together. Many years later, there would be separate House of Lords and House of Commons; and later still, those houses would be replicated in America, India and elsewhere as the council of states and the house of the people.
The first parlement ensured peace, but Henry now wanted to send his army into Sicily and Rome to aid his brother and son. He proposed to raise a huge sum through taxes. Reeling under a severe drought and famine, the barons refused. The king threatened to impose taxes on his own. Liberty needed another champion like Stephen Langton and Robert Fitzwalter. There came one—Simon de Montfort, the earl of Leicester and the king's brother-in-law, a man brave in heart and wise in mind.
Montfort rallied the barons and forced the king to reissue Magna Carta twice by which the king agreed to have a council of 15 barons above his own advisory council. This council, a rudimentary cabinet but without executive powers, would be accountable to parliament that would meet three times a year, whether the king summoned it or not. Even today, most parliaments, including India's, meet thrice a year.
But before the parliament could meet, Henry declared war on it. Montfort defeated his king in the battle of Lewes (1264), took him prisoner, and then summoned the first 'real' parliament—not just barons but also two knights from each shire and two burgesses from each town. It met in January 1265 in a field near Kenilworth Castle, and discussed taxation and other matters of state.
But the 'parliament rule' did not last long. Several barons did not like Montfort's idea of associating the commoners. They rallied behind Henry's son Edward, and confronted Montfort in the battle of Eversham. Montfort, a true hero, fell fighting.
Though he asserted royal authority, the young Edward had read the writing on the wall. He allowed Montfort's comrades, holed up in Kenilworth Castle, to walk out free, and summoned a new parliament. It restored several of the king's powers, but also upheld several of the baronial property rights enshrined in earlier statutes.
Edward I fought bravely and ruled wisely. He let the councils meet, and did not interfere with their powers. The council drew up rules for representing communities in parliament. The king had to seek parliament's consent to tax; parliament asked the king to define the limits of forests—forerunners of today's money bills and land acquisition bills. In the battlefield, Edward defeated the army of France and of the legendary Robert Bruce, king of Scotland.
But his successor Edward II was a disaster. Bruce learnt his lesson from a spider to try, try and try again and finally defeated the English army at Bannockburn. The defeats, coupled with stories about Edward's homosexual relations with Piers Gaveston (which would later become the theme of a Christopher Marlowe play) angered the barons. Edward's wife, Isabella, found a lover (wouldn't she?) in Roger Mortimer and joined the rebels. They deposed the king, and killed him by inserting a red-hot poker into his anus.
To be sure, even these crude actions had their legal and political sophistry. The 'deposition' of Edward was through a council process and his execution was after a trial by law!
Edward II's son Edward III was proclaimed monarch, but his mother and her lover wielded the real power. Not for long. When parliament met in Nottingham in 1330, the young Edward III entered it through a secret passage, seized his mother's lover, and sent him to the gallows—after another 'fair' trial, of course.
Edward III had several victories over France in the early stages of the Hundred Years War (Joan of Arc would appear in it later on the side of France), but he had to tax his subjects to raise funds. The parliaments of 1343, 1344, 1346, 1348 and 1352 criticised him.
By then, the Black Death was beginning to haunt England and Europe. People died in thousands; there was a shortage of labour. As workers demanded higher wages, parliament by statute froze the wages! Yes, the early labour laws were passed to keep wages low. But they also limited the king's power to tax. A 1362 act prohibited the king from taxing wool trade.
By the close of Edward III's reign, the commons started asserting themselves. They assembled in what came to be called the 'Good Parliament' and elected their own leader, the first speaker of the Commons, Sir Peter de la Mare, and ousted the king's bad ministers. Edward's son John of Gaunt fought back, and arrested the first speaker.
Parliamentary power and people's rights expanded under the rest of the Plantagenet rule, which ended in the Wars of the Roses, so called because the rival houses of York and Lancaster carried shields bearing white rose and red rose. During all these years, there was hardly any invocation of Magna Carta. Its existence as a statute was forgotten.
Then came the powerful Tudor kings. Henry VIII, famous for his marriages, divorces and execution of wives, rarely clashed with parliament. Parliament did not dare question him. “After the Tudor accession, the charter entered a twilight era in which its authority was still recognised, but it was of little practical utility in safeguarding liberty,” says Nigel Saul, professor of medieval history in the University of London.
Yet, during the Tudor reign, there was a sudden revival of Magna Carta as the statutory foundation of liberty. It happened thanks partly to the new technology of printing, and thanks to Sir Thomas More, one of England's greatest statesmen, one who dreamed of a Utopia, the ideal land of law.
In 1508, Richard Pynson printed an edited version of Magna Carta. In 1534, George Ferrers printed an unabridged version and Robert Redman printed the first English version. As Justin Champion and Alexander Lock pointed out in the Magna Carta exhibition going on at British Library, London, which this writer visited in April, “Magna Carta became the first statute that every lawyer trained in the London Inns of Court encountered in print, and it is no coincidence that appeals to the Great Charter steadily increased from the 16th century.”
Henry, who had defended the Catholic faith and papacy against Protestantism, clashed with the pope when the latter refused to permit him to divorce Catherine of Aragon. Henry questioned the authority of the church over temporal laws, declared himself the head of the English Church, divorced Catherine and married Anne Boleyn. Upon this, Sir Thomas More, who had advised Henry on matters of law and statecraft, resigned. Henry got More arrested and put him to trial for treason.
The trial of More was one of the greatest debating rounds over the concept of law and liberty. Before walking gallantly to the gallows, the great More told his king that his act was against not just the laws of God as administered by the church, but “contrary to the ancient laws and statutes of our own realm... as [you] might well see in Magna Carta.”
As more and more of the king's critics—statesmen, lawyers, clerics and rogues—invoked Magna Carta, Henry's chief minister Thomas Cromwell called for examining how the concept of liberty came into this “auncyent cronycle of Magna Carta”.
Magna Carta was invoked without much effect during the rest of the Tudor reigns of Mary and Elizabeth, the period when England asserted itself as a sea power, defeating the French, the Dutch and finally the Spanish armada. But the real assertion of the rights of the people, of parliament, took place in 17th century against the Stuart kings.
One of the last acts of the last Tudor, Elizabeth, was to give a charter to the East India Company to trade with India. Interestingly, a few English merchants, who resented the monopoly of the company, published an anonymous pamphlet invoking Clause 41 of Magna Carta, which protected free movement of merchants. The monopoly right granted to the company to trade with India, they said, was “absolutely against the right of the freeborn subject of England, no mean infringement of Magna Carta”.
When the virgin queen died without leaving an heir, her kinsman James Stuart, king of Scotland, succeeded to the throne of England and Scotland. James sent Sir Thomas Roe with several gifts, including paintings of himself, to the court of Jehangir, the great Mughal known for his sense of justice. Jehangir promptly commissioned a painting showing James standing in attendance in his court.
The Stuarts, staunch Catholics having come to rule over a largely Protestant people, believed in everything that the champions of Magna Carta did not. They believed that the king had been chosen by God to rule, and that no authority of people or law could override the will of the king. In a land that was witnessing the age of reason and science much earlier than most of Europe, a land that would give birth to the greatest physicist who would define the fundamental laws of the universe, such an assertion had to elicit an equal and opposite reaction.
The Newtonian age of reason also produced some of the great thinkers on jurisprudence. One of them, one whose name is writ in gold in the annals of English (and Indian) law, was Sir Edward Coke. After Langton, Fitzwalter and Montfort, liberty got a new knight to defend it, one who wore no sword or lance, but waged his battles with pure reason.
As the Catholic James I resorted to new ways of taxation and tyranny, Coke rose to defend, through great juridical arguments, the liberties enshrined in Magna Carta. “For Coke, the legitimate rule of law lay in the gift of an independent judiciary rather than the will of the monarch,” say Champion and Lock. “As a consequence, Coke, despite holding legal office at the gift of the king, frequently turned to the courts to defend the liberties of Englishmen against illegal royal prerogative.”
He was ultimately removed from judicial office in 1616 and imprisoned in 1621-22. After he came out of prison, Coke entered parliament, where he continued his crusade for liberties. He wrote treatise after legal treatise asserting the supremacy of common law over the king's will.
James hardly called the parliament, except for a short and acrimonious session in 1614, which came to be called Addled Parliament. His son and successor Charles I lacked even his father's tact. When five knights refused to accede to Charles's forced loans, and the king put them in prison, Coke used the forum of parliament to question the king. In a fit of light-hearted banter, he told the king, “Magna Carta is such a fellow that he will have no sovereign.”
When parliament refused to approve of his finance bills and forced loan of 1626, Charles dismissed it and resorted to 'personal rule'. When he failed to get Charles reissue Magna Carta, Coke drafted the famous Petition of Rights (1628), which drew on Magna Carta and restated the rights of the subject (citizen). Charles grudgingly gave his assent to it, which, in Clause 39, recognised that citizens could refuse illegal demands from the king. Coke died in 1634, before he could publish his second series of legal commentaries, which Charles tried to confiscate.
But Coke had stirred the minds of the people. When Charles extended the demand for 'ship money' to inland areas in 1635, men like John Hampden flatly refused to pay. In 1639, when he needed money to fight his war with Scotland, Charles summoned parliament. The first session, called Short Parliament, was a disaster. When it was called again, it decided that it would not just go away, and became 'Long Parliament'. By then the champions of liberty had managed to print Coke's second volume of Institutes of the Lawes of England, which is considered the greatest commentary on Magna Carta till date.
Inspired by the ideas of Coke, parliament asserted itself. It called Charles's ministers to trial and even executed the earl of Stafford. Then it passed an act requiring the king to call parliament every three years. Next, it moved to enact laws bringing the army under its control, and even moved to impeach the queen.
Charles decided he had had enough. On January 4, 1642, the king entered parliament with his armed guards to seize 'Five Members', who had been his worst critics. He sat in the speaker's chair, and seeing that the five had fled, asked Speaker William Lenthall where “the birds had flown”. To that, Lenthall made the famous reply, which till today continues to define the role of the speaker in the house. Falling to his knees, Lenthall replied: “May it please Your Majesty, I have neither eyes to see nor tongue to speak in this place but as the House is pleased to direct me, whose servant I am here.” The house was supreme, even above the one who ran the house!
Charles marched out peeved, and prepared for war. Parliament raised its own army under Thomas Fairfax. It was civil war—between a king and 'his' parliament. Magna Carta was now taken from the great debating halls to the battlefield. Parliamentary troops even carried its representation on their ensigns! The king's side, too, swore by Magna Carta against the excesses of parliamentary forces.
The king had early successes, defeating the parliamentary forces in a series of battles, when there emerged on the parliamentary side a great soldier and statesman—Oliver Cromwell, one whom England still does not know whether to admire as a champion of freedom or to hate as a Puritan fanatic.
Cromwell's New Model Army of cavalry defeated the royalists in battle after battle. Whatever virtues his critics may deny him, no one can question Cromwell's military genius. His army was more disciplined than the king's, more agile, and extremely mobile. In just an eleven-day siege, he took the formidable Sherborne Old Castle from the Digby family and razed its mighty walls. (The Digbys still hold the New Sherborne Castle.) At the end of a lightning campaign, Cromwell scored decisive victories, first at Naseby and then at Preston. The king was soon his prisoner. As a faction in parliament moved to negotiate with the king, Cromwell executed the famous Pride's Purge, by which he removed all 'compromising' members.
The trial of Charles, the 'sovereign' of England, for treason, saw the greatest jousts in legal logic. If the king represented the country, how could the king be tried for treason? That would mean, he was being tried for waging war against himself. Charles appealed to logic.
But parliament had superior logic, which led to the formulation of one of the most remarkable expositions in law. The crown, not the king in person, represents the realm. The king had sought the help of the enemies of England. So the king of England had waged war against the crown of England!
As the parliamentary court found the king guilty of treason and sentenced him to death, Coke's light-hearted banter that “Magna Carta is such a fellow that he will have no sovereign” came true. England had no sovereign!
Following the execution of Charles, Cromwell ventured on a republican experiment, calling himself Lord Protector of the Realm—the only time England became a republic. In effect, it was a military regime of religious fundamentalists called Puritans, much like the Taliban regimes of today. Even dancing around the maypole was banned as un-Christian. In 1650, parliament legislated to make adultery punishable with death. People began to long for monarchy again.
Cromwell was succeeded on his death by his son in a monarchical manner, and soon parliament itself fell out with the Puritan army. The Long Parliament, which existed before Pride's Purge, was restored, and in 1660, it voted to restore monarchy. Unlike what is generally believed, Charles's son Charles II was restored to monarchy not just by the force of arms, but by the force of a parliamentary resolution.
Charles II ruled in peace, and with an army of mistresses and concubines, but things came to boil when he was to be succeeded by his fanatic brother James II. A group led by Anthony, the earl of Shaftesbury, moved a resolution in parliament to exclude James from coming to throne. They later came to be called Whigs. The loyalists of the crown questioned parliament's power to decide on succession of the crown. They came to be called Tories. The first political parties were born.
One of the early Whig politicians, Henry Care, published English Liberties, which drew on Magna Carta to defend personal liberty of freeborn people. It defended trial by jury and reinforced Magna Carta as the basis of legal freedoms. Care's work was condemned as seditious by many, but it was also quoted by later champions of freedom.
The new king James II was tactless, like his executed father. As parliament criticised his religious policies and his move to enlarge the army, he prorogued it in 1685. He then tried to pack parliament with Catholics. A faction in parliament invited James's Protestant son-in-law William of Orange to invade England. As William and his wife, Mary, arrived with an army in 1688, James fled. The coup, achieved without spilling blood, came to be called the Glorious Revolution. The new parliament passed a resolution declaring that James had abdicated by “breaking the original contract between the king and people”. As William and Mary were anointed joint monarchs, parliament passed a law that barred Catholics from succeeding to the throne.
There ended the violent conflicts between the king and the people. Since then, it has been an evolutionary process by which people asserted their power through parliament. “The Bill of Rights of 1689, whose denunciation of Stuart kingship was explicitly presented by parliament as 'our second Magna Carta', circumscribed the powers of the new monarchs,” point out Champion and Lock.
Parliament prohibited the king from having a standing army—the reason why British army is still not Royal Army, unlike its Navy and Air Force. It has royal regiments and royal battalions, but there is no royal army.
These royal regiments and battalions, along with the armies of the East India Company, began annexing territories in India during the Hanoverian reign of the Georges. George I, having grown up in Germany, could not speak English. He left matters to his advisers headed by Robert Walpole, who is today considered the first prime minister though he did not bear the title.
The English people who valiantly fought for liberties in their home country proved to be restrainers of liberty in the colonies that they founded with the force of their arms. Following Robert Clive's victory at Plassey in 1757, they consolidated their power in Bengal and got the diwani of Bihar. Clive was succeeded by Warren Hastings who became the first governor-general of India. One of the first moves to impose English judicial system was the Regulating Act of 1773, which established a supreme court in Calcutta.
English duplicity was at play at the start of the English rule in India. The early days of English law in India were mired in controversies, especially ones involving jurisdiction. The British were reluctant to extend the liberal rights they enjoyed back home to their colonial subjects. Two cases stand out. A 1779 case, involving the civil trial of James Creassy, who had assaulted two Indian carpenters, became a case for many Englishmen in Calcutta to demand trial by jury which, they said, was the “inherent, inalienable and indefeasible” right granted to Englishmen. The first chief justice, Sir Elijah Impey, responded to the demand, saying that Magna Carta had “merely a local influence” in England. When Creassy persisted, Impey warned him that he “was running his head against a wall, and would dash his brains out” if he persisted with his appeal. But Creassy's petition finally forced the British parliament to reform the court system in 1781.
The second case, which also cast a dark shadow on the first chief justice, ended as a terrible instance of miscarriage of justice, involving also the first governor-general. A case in which justice was sold as a favour, something explicitly prohibited in Magna Carta.
The case involved Nandakumar, an influential Calcutta merchant and a bitter critic of Warren Hastings. Nandakumar was accused of having appropriated a widow's property by forging documents. He was arrested, tried and sentenced to death by a jury in Impey's court.
The execution created a storm of protest in India and England. Charges were raised that the trial was a farce, a favour done by the chief justice to the governor-general who were friends. First of all, the defence witnesses had been cross-examined by the judges themselves. Secondly, after convicting Nandakumar, the court refused him leave to appeal to the Privy Council in London. Thirdly, the offence of forgery had been committed before the court was established, which meant that Indian laws, which did not prescribe death sentence for forgery, had been prevailing at the time of the committing of the offence.
Though Nandakumar's life could not be saved, there was an outcry in London against the conduct of the court. Hastings and Impey were called to be impeached in parliament over several charges of corruption and impropriety, one being the Nandakumar case. Both were acquitted, yet their reputations were marred forever. Even half a century later, Thomas Macaulay, the man who would push for the 'imposition' of English language and English law on India would severely criticise Impey, as would the great English liberal, James Mill.
The Charter Act of 1833, pushed hard by Macaulay and James Mill, created a legislative council in Calcutta, which would make all laws for India. The act also empowered the governor-general to appoint a law commission, the first of which was headed by Macaulay himself. The penal laws were soon codified into the Indian Penal Code.
The two great systems that had sprung up from the principles enshrined in Magna Carta are the English system of parliamentary democracy and the English system of law. Though the two came together in 19th century, the English rulers were willing to transplant the Anglo-Saxon legal system in India immediately, but not the parliamentary system. It took more than a century of bitter struggle by great Indian minds (most of whom, ironically, were inspired by the very same principles of liberalism that prevailed in the land of the colonial masters) to introduce the parliamentary system in India.
The Charter Act of 1833 was improved upon by the Charter Act of 1853, which, according to W.A.J. Archbold, “represents the beginning of a parliamentary system in India”. The act made legislative business a public affair, and the bills passed had to be assented to by the governor-general to become law.
The revolt of 1857 changed the character of the constitutional system to be followed in India. After the crown took over direct administration of India, the Indian Councils Act of 1861 brought about a rudimentary cabinet form of government. This was followed by the Indian Councils Act of 1892, the Minto-Morley reforms of 1909, and the Government of India Act of 1919, which was based on the Montagu-Chelmsford reforms of the previous year.
By then, Mohandas Gandhi, a former Inner Temple lawyer who had imbibed the spirit of Magna Carta better than any other colonial politician, had moved in to lead the Indian movement for political liberty. In South Africa, Gandhi had often invoked Magna Carta. When the Jan Smuts government passed the Indian Relief Act in 1914, which ended racial inequality between Indians and whites in South Africa, Gandhi hailed it as the “Magna Carta of our liberty in this land”.
The 1919 act is considered the first comprehensive constitutional document of India, which would push India towards a federal system. But the real forerunner to the Constitution was the 1935 Government of India Act, which provided for a central legislature system that was adapted from the English system. Just like the British parliament consisted of the king, the House of Lords and the House of Commons, the Indian legislature was to have the governor-general representing the king, a council of states and a popularly elected legislative assembly.
By the end of the second world war, the process of decolonisation had begun. The first was India. “Magna Carta began by offering some rights only to some people, only against some organs of the state,” points out Philippe Sands, professor of law at University College, London. “But the idea spread to national constitutions and, near the end of the second world war, in international law more generally.”
Indeed, but English duplicity was at play at the ending of British rule in India as it had been at the beginning. There were suggestions from several of the British colonies and dominions in early 1947 to celebrate June 15 as Magna Carta day all over the British empire. That was also the time when the Constituent Assembly of India was drawing inspiration from the great English liberal tradition to draw up the Constitution of the world's first post-colonial republic.
But look at what the Colonial Office in London advised Delhi. It asked the viceroy's government to discourage any celebration of Magna Carta day because the concepts of liberty might be seized upon by “ill-disposed colonial politicians” in their struggle for freedoms!
Exactly two months after the 'uncelebrated' Magna Carta Day of June 15 that year, “ill-disposed colonial politicians” declared India free. Yet, they sat down to write the world's longest constitution that drew liberally from the principles of Magna Carta.
Finally, when it was ready, and its makers were satisfied that it carried the Magna Carta principles of justice and liberty, and the French revolutionary ideals of equality and fraternity, they wrote:
“We the people of India... hereby adopt, enact and give to ourselves this Constitution.”
The people gave themselves the law. The people became sovereign.