Looking Back on Magna Carta: 800 Years Wiser by Jocelyn B. Hunt

Today's post is a guest blog from Jocelyn B. Hunt.

Newspapers and historical groups have presented much fanfare in the lead-up to 15 June for the 800th anniversary of the signing of Magna Carta (Latin for ‘the Great Charter’). The collective applause for the enduring memory of the Great Charter stands to be challenged as with any other remembered historical document or event. Unlike many revisions which fundamentally alter our modern understanding, such as the clan tartan myth, the history of Magna Carta can further strengthen its importance in our history and for us today. Today’s post will provide the historical context of Magna Carta’s creation and development as well as investigate the difference between the spirit and letter of the charter’s clauses.

Magna Carta seems to be a legal jack-of-all-trades – it can fulfill a plethora of roles. Prince Charles, the British heir known for his environmental work, hopes a new global environmental agreement can be the “Magna Carta for the Earth” and is confident that non-British people will understand the sentiment. In 2013, Jay-Z released Magna Carta…Holy Grail, a multi-artist rap album, by displaying the album artwork next to a 1215 version of the Great Charter in the Chapter House of England’s Salisbury Cathedral. Or, former British Prime Minister Margaret Thatcher basked in her nation’s glorious history for pioneering representative government in 1215. Likewise, many commentators celebrating Magna Carta’s 800th anniversary seem to have a skewed understanding of the original document and its history.

Some choose to remember  Magna Quacka  during bath time.

Some choose to remember Magna Quacka during bath time.

In the former British Dominion of Canada, journalists of all stripes joined in the commemorations. The title of a Globe and Mail article reiterated a common symbolism found in the 15 June events: “justice triumphing over tyranny.” While a journalist at the National Post highlighted the magnitude of the document, for “Magna Carta promises fair rules accessible to everyone” and held “the key rights that make a decent society possible.” This praise for the document and its signing supplements a long history of bending the Great Charter to represent whatever suits the speaker. We see this in an array of cultural realms from the shrewd rap artist to the gloating politician. There is a semblance of fact in these commemorations, but to be true to the history and legitimately celebrate the anniversary, we should understand the original narrative.

Taxes were central to the dispute between King John and the English Barons who eventually forged an agreement through Magna Carta. Following the loss of his land to the French King Philip II in 1204, John further angered the English nobility by continuously raising taxes with the hopes that more military spending would lead to regaining his ancestral lands. To the Barons this was yet another example of John and his predecessors (including the equally infamous Richard the Lionheart) ruling by vis et voluntas, or “force and will.” The monarchs flouted the customary voice of the Great Council, consisting of nobility and leading clergymen. Consequently, the Barons renounced their fealty to King John in May and, following their successful siege of London, the king agreed to discuss reforms at Runnymede.

A facsimile of the Magna Carta, published in 1733. The original was burned in the Ashburnham fire of 1731 via the  British Library .

A facsimile of the Magna Carta, published in 1733. The original was burned in the Ashburnham fire of 1731 via the British Library.

On 15 June 1215, King John placed his seal on what would become Magna Carta, codifying the demands of the rebelling English barons. Yet by September, Pope Innocent III had fulfilled King John’s request by denouncing the Great Charter as “not only shameful and demeaning but also illegal and unjust,” and declaring the 1215 Magna Carta “null, and void of all validity for ever.” This part of the history is often overlooked in the popular retelling of Magna Carta’s formation because subsequent English monarchs willingly reissued it following John’s unexpected death in 1216. The revised 1225 charter that King Henry III issued was the actual document that made it to the United Kingdom’s Statute Books. Canadians who visit the Charter on its anniversary tour across the country will view a largely unchanged version produced in 1300. But few remember that the original charter was only legally recognized for just over two months which adds to our problematic celebrations considering the original included sixty-three Clauses yet by 1225 it included a mere thirty-two. Today only four remain in their original form. While it is expected that reissued legal documents will be altered (especially after 800 years), perhaps we should further examine the original 1215 charter and its subsequent changes.

Illustration of King John delivering Magna Carta to the Barons (1783) via the  British Library .

Illustration of King John delivering Magna Carta to the Barons (1783) via the British Library.

Magna Carta’s legacy endures because it is cited as the origin of many of our fundamental rights today, including the right of Habeas Corpus, the right to have a jury of your peers, and equal treatment before the law. Less commonly known are the clauses guaranteeing widow’s property rights that commentators use as an example of the charter’s progressiveness. Each of these are present in the original as well as the official 1225 version, but other equally well-known and celebrated ancient rights did not make the first cut.

One of the clauses removed from the 1215 charter played an important role in America’s history. “No taxation without representation,” an expression irrefutably linked to the American Revolution, was first codified as a legal right in the 1689 Bill of Rights. However, when James Otis famously demanded this right, he referenced the ancient rights in Magna Carta. Clause 14 of the 1215 version states an obligation “to obtain the general consent of the realm for the assessment of an ‘aid’ …or a ‘scutage’,” through individual summons for the peers and clergy and a general summons for “those who hold lands directly of us.” Although it only had a legal force for barely two months, “no taxation without representation” continues to be one of the liberties that is fundamental to a popular understanding of Magna Carta. King John’s efforts to render the Great Charter useless and subsequent monarchs’ removal of Clause 14 was for naught because generations of British subjects continued to view it as an integral principle of the charter regardless of its lost legal status.

As for the celebrated clauses that remain on the Statute Books, an exploration of the history raises old questions about following the spirit or the letter of the law. Disputes about the spirit or the letter of the law come in many forms, such as the undertone in some of Shakespeare’s plays or the divided camps in the United States who cite the Federalist Papers. At times, it seems obvious that the spirit trumps the letter, such as when two Texan girls had their lemonade shutdown for not having the state-required Peddler’s Permit. Yet when we consider aspects of Magna Carta, the clauses which hold weight today continue to do so because of the literal word rather than the spirit.

 One of the Great Charter’s modern day legacies is the right to have a jury of your peers, for Canadians found in Section 11 of the Canadian Charter of Rights and Freedoms.  Its predecessor, Clause 39 in the 1215 charter, declared, “no free man shall be seized or imprisoned, or stripped of his rights or possessions… except by the lawful judgment of his equals.” Today the latter part is broadly understood to include both the right to a jury trial (with some stipulations) as well as a representative jury. The ancient right to a jury of your peers continues to hold weight in the 21st century considering lawyers called the lack of ‘peers’ on a jury as grounds for appeal during a 2011 case in the Ontario Court of Appeal. They cited Magna Carta.

We celebrate Clause 39 because it guarantees equality between people and can be a protection against tyranny. But the modern commitment to Habeas Corpus and a defendant’s right to be judged by their equals derives from a literal reading of the clause. In 1215 and several times since, the English nobility sought to limit their monarch’s reach. By enshrining the right to trial by jury, the rebels were preventing the king from arbitrating their land disputes. As for “judgement of his peers,” revised from ‘equals’ but in the same spirit, the English barons and earls were looking to protect themselves from the other direction of the social hierarchy. A representative jury ensured that freemen could not judge their social superiors, that is, it was not intended to protect individual Englishmen but the nobility. Thankfully, we follow the literal meaning of Clause 39 because if we followed the spirit, suspended Senator Mike Duffy would have had the legal right to request a jury of his peers – other senators who might have an interesting view of what is an acceptable expense.

By only including freemen, and not the majority of the population, Magna Carta reflected the social and legal norms of feudal England. The removed Clause 14 mentions ‘general consent’ and that all ‘freemen’ had a right to Habeas Corpus and a jury of their peers but those terms had different connotations in feudal England. Today people might assume free means not incarcerated, but at the time, it meant free to leave your manor without permission from your lord. Meaning that many of the clauses applied to less than half of the English population.

Liberty suspended! with the bulwark of the constitution! (1817); for a detailed explanation of this cartoon, visit  the British Museum website .

Liberty suspended! with the bulwark of the constitution! (1817); for a detailed explanation of this cartoon, visit the British Museum website.

The evolving meaning of the charter was more apparent in the late eighteenth century, when Britons were in the midst of a debate over the spirit or letter of the law. The application of Magna Carta rights was crucial to the late eighteenth century campaign by British reformers for universal male suffrage. They believed, like the barons of 1215, that their rights were a means to redress grievances against the government and argued that their claims for equality were based in the historic acknowledgement of them. Yet their vocal opponent, Edmund Burke, also used Magna Carta to demonstrate that the franchise was supposed to be limited to a segment of the population, not all of it. For the reformers, their demands were a return to ancient rights of equality because they were literally ‘free’ men, while for Burke, limiting suffrage was an affirmation of ancient rights because ‘free’ indicated some sort of property holding. When universal male and female suffrage arrived in the twentieth century, rights were no longer linked to property and legal documents used more general terms such as ‘citizen’ or ‘Canadian.’ Nevertheless, this relatively recent English debate on who can claim their rights derived from Magna Carta suggest that recent celebrations do not represent the historical truth but rather a creative interpretation.

If we are going to celebrate a document for being fundamental to our history, we should understand it properly in its historic context. It is from the letter of the law that we often trace the origins of Habeas Corpus and the right to a jury of our peers because the spirit no longer reflects our societal values. Additionally, and perhaps more importantly, commentators today raise Magna Carta to lofty heights because, as John Robson explained, “King John was forced to concede that people have inherent rights… that everyone is entitled to a fair system of rules accessible to everyone.” Rights are not inherent when there are property restrictions and it is questionable to claim, even today, that the system is equally accessible to everyone. While this is but one quote, so many of the celebratory articles are prepared to pat their ancestors on the back for creating an equal and progressive document which, historically speaking, simply did not exist. So rather than selectively applauding the imperfect Magna Carta and its creators, let’s celebrate the journey from their time to ours. Today our legal system has enshrined equality as a vital characteristic of our society, and though much has happened since 1215, we do owe partial thanks to King John and his barons for that.