Not all it is cracked up to be?

On Tuesday evening, I gave a public lecture at the University on ‘The Continuing Relevance of Magna Carta: Symbol or Substance?’  There was an impressive attendance, clearly reflecting interest in the subject.  My purpose was to provide the background to King John appending his seal to a charter in 1215 and to look at the consequences of him doing so.   Part of my purpose was to distinguish the events of 15 June 1215 from Magna Carta.   The charter did not set a precedent for the King to accept limitations on his power – the coronation charter of Henry I of 1100 preceded it (and indeed the rebellious barons called Henry’s charter in aid) – and that of 1215 had a short life.  It was repudiated in the August by the Pope.  A revised charter, shorn of its radical elements, was issued in 1216 by Henry III and reissued in 1217, when provisions relating to forests were put in a separate charter, so for the first time the charter became known as Magna Carta.  It was re-issued in 1225 and this was the definitive version.  We in England have just as much cause to celebrate 1216 as we do 1215.  Celebrating 1215, with its virtual destruction of royal authority, has a greater resonance for Americans.  Magna Carta was as much a process as it was an event.

Perhaps more importantly, the charter did not do the things that are now claimed for it.  It did not introduce or guarantee jury trials or habeas corpus.  It was not responsible for establishing the concept of the rule of law.  As Jonathan Sumption pointed out in a recent speech, there are no high-blown principles embodied in the charter.  As he puts it, ‘The document is long.  It is technical.  And it is turgid.’  It sought to protect the interests of ‘free men’ – a rather small group in 1215.  Most of the population were excluded.  It was the result of barons pursuing economic self-interest.  The provisions deal with matters such as inheritance, borrowing money, guardianships and removing foreign mercenaries brought in by John to fill offices such as those of sheriff.  The provisions relating to justice relate to ‘free men’ and the language is less inclusive than the monarch’s coronation oath.

Magna Carta was to be reinvented, not least by the great 17th Century lawyer Sir Edward Coke, and its provisions given meanings not intended at the time.  Coke’s interpretation, in Sumption’s words, ‘was swallowed wholesale by early American colonists’.  It has continued to resonate around the world. What happened at Runnymede is seen as the start of an era of representative government, but that is an idealised, not to say totally distorted, view.  Edward Jenks in 1904 argued that the charter was actually a stumbling block to English constitutional development.  What it constituted was really the end of a feudal era.

As Jonathan Sumption puts it, ‘Some documents are less important for what they say than for what people wrongly think they say.  Some legislation has a symbolic relevance quite distinct from any principle which it actually enacts.  Thus it is with Magna Carta.’  We are dealing with a myth, but an immensely powerful one that has shaped behaviour around the globe.