Not all it is cracked up to be?

thOn 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.

About Lord Norton

Professor of Government at Hull University, and Member of the House of Lords
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7 Responses to Not all it is cracked up to be?

  1. Croft says:

    “17th Century lawyer Sir Edward Coke”

    Well he was pretty notorious for trying to make huge leaps in the law which remarkably coincidentally usually involved giving the judges – which he led- more power

    Plus ca change.

  2. Lord Norton,
    I like your analysis for whatever that may be worth to you. However, your arguments and assertions raise the question of precedent as a legal principle. The barons you call rebellious indeed referred back to earlier edicts and covenants. Perhaps to the degree that there are high blown principles they have been stated in form and process rather than in words. The process and the document support legal precedent, Christian identity, established titles and states in society independent of the law in the narrowest sense.

    Equally, they set a powerful precedent for uniting conciliar or parliamentary will with royal assent to create a current constitutional consensus. Perhaps specific provisions are less important….

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  5. Tom Jones says:

    Sir, is it not incorrect for MPs to both legislate and rule over us? The Queen only sanctions/signs the law changes, rule changes and legislation decided by the Commons? It cannot be right, that using the Queen to sanction such changes, when we all know that it is merely protocol which demands it? Can there be a system whereby we have people who write laws, and them our elected representatives impart, and ensure obeyance, with of course the Judicial chambers? As i have said in the past we have “the Poachers writing the Laws for the Poachers, who are subsequently overseen by the poachers”? The IPSA too was put in place to control MPs to a certain extent, the current constitution makes no mention of our powers with regards our rulers? We have lost the Recall Bill, and even that was Poachers investigating Poachers? We need a bill with recourse of action against MPs who not only overstep the mark, but indeed do not do as we wish, and break laws on occasions? The Recall Bill or similar is vital to the well being of the electorate, up until now, the people have no power except a vote every 5 years? Even when we vote through a referendum, we are still controlled by bias and other reasons?
    A constitution, such as the USA has, might i add, on the back of some parts of MC is tangible, there is a book one can hold and refer to? When Nixon was found out, he was pretty much sacked, we do not have such a system here, the MPs once in are bullet proof, and for a constitution to be valid and acceptable, there must be a way to hold people in power to account? I appreciate that we have trial by our peers, and this must always be included in the final document. However the unbalanced investigation of MPs behaviour, by other MPs cannot be acceptable to any democracy in 2016? The document you state, MC 1225 was about the Barons and Kings/Queens, not really about the plebs and their powers. And even what which was included has been eroded over time, with the exception of trial by peers. We have lost our Petition of Right, eroded under cover if you will by unscrupulous Governments through time. Bill of Rights is of little or no use, as Legislation supersedes it.
    I love this Great Country and all of its law abiding people, but the possible inclusion of sharia is against everything we know as honest, kind British values. Subjugation of females, child abuse in that men can marry children, and on the extremes of it FGM? You did mention that it would be wrong for a Government to write a constitution, i cannot honestly believe that they will not have such input to devalue all of your hard work?
    I would love to be involved in the construction of this document, and would be part of the solution both me and you seek.
    Thank you
    Regards Tom

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