The Magna Carta was signed 800 years ago today.

[Quartz]

And thus laid the foundation for the rules of liberty and law. Granted it took a long time for people to build on that foundation, but brick by brick they gradually did.

@Magna Carta

No free man shall be taken or imprisoned, or dispossessed or outlawed or exiled or in any way ruined, nor will we go or send against him except by the lawful judgement of his peers or by the law of the land. To no one will we sell, to no one deny or delay right or justice.

[D18]

Well, almost!

Second, in 1752, England switched from the Julian calendar to the Gregorian calendar, to bring the calendar back into synchronisation with the real world. Eleven days simply disappeared. So, while it is true that the Articles of the Barons, later called Magna Carta, was signed on 15 June 1215, that day is 800 years ago minus 11 days. The date which is exactly 800 years after the signing of the Articles of the barons is actually 26 June this year; The date which is exactly 800 years after the signing of Magna Carta is probably 30 June this year.

[Ravenman]

Well, there’s also stuff like this: No-one is to be taken or imprisoned on the appeal of woman for the death of anyone save for the death of that woman’s husband.

And a lot of stuff about treatment of forests, which I see as an interesting sign of the times. Had it been written today, I wonder if the preponderance of freedoms would have been about bitcoin, online behavior, and due process before a troll is banned from a message board.

[Becky2844]

Then “Juneteenth” is appropriate for all kinds of freedom, huh?

[Gyrate]

Does Magna Carta mean nothing to you? Did she die in vain? Brave Hungarian peasant girl who forced King John to sign the pledge at Runnymede and close the boozers at half past ten! Is all this to be forgotten?

[Stanislaus]

I’ve seen a lot of stuff lately suggesting that Magna Carta’s status as foundation of liberty is much more a mythic truth than an actual one.

1. The actual 1215 document (which was itself annulled shortly after being issued) and the later charter of 1225 (issued by Henry III on reaching his majority) were not intended as, nor seen as, fundamental constitutional documents. On the contrary, they are essentially setting out the terms of a feudal contract between the king and his tenants-in-chief (those who held lands directly from the king). Because feudalism is a system of mutual rights and obligations based on land ownership, it is essentially contractual, not statutory and still less constitutional. The reality of the situation was that King and Barons depended on each other. No monarch of the time had enough financial or military power to rule absolutely - they required the support of the landowning class. Similarly, the landowning class depended for legitimacy on the monarch. Mutual obligation was the order of the day and feudal law reflected this.

Both the 1215 and 1225 charters are thoroughly based in existing feudal law and seek only to define obligations between the two parties based on existing well understood legal status. This is why much of the charter concerns itself with fishing rights, inheritance fees and the rights of inheritors, the status of the Church and of the City of London, fishing weirs etc. The two articles you quote:

No free man shall be taken or imprisoned, or dispossessed or outlawed or exiled or in any way ruined, nor will we go or send against him except by the lawful judgement of his peers or** by the law of the land.** To no one will we sell, to no one deny or delay right or justice.

do not refer to just any subject of the Crown but only to the tenants-in-chief, who were subject directly to the King’s own court. The “we” here is the royal we - the King is agreeing to stop abusing his position by fleecing tenants-in-chief when they come before him for justice. Again, this is only a clarification of the contractual obligations of the King to a small group of his wealthiest noblemen. Read as a fundamental principle of law, it actually says very little. As I’m basing this largely on a legal blog, I may as well quote directly:

@Jack of Kent

But read it again carefully, and you will see it says little which is concrete at all. For as Sumption and others have pointed out, its meaning is essentially circular: you shall only be treated by the law under the “law of the land”. it tells you nothing about what that law should be. And if the “law of the land” includes, say, an unfettered royal prerogative or other unlimited executive powers, then it offers no protection whatsover; and it didn’t.

Note that the law of the land at the time included a Royal Warrant - arrest on the King’s say-so. “I shall not take or imprison or outlaw you or go against you, unless I sign a bit of paper saying I can” is not really much of a guarantee.

2. The very fact that the charter refers to existing law shows that this was not revolutionary thinking. The idea that the King was constrained by law was well understood as a principle and as a reality before the charter was thought of - in fact, the reason the barons forced the signing of the charter was precisely because they had a very clear conception that the king was bound by the law (in terms of feudal obligations), had been breaking it and needed correction. Magna Carta is at best a restatement of this existing reality.
   In fact the charter was very little regarded. It was reissued periodically as a means of ensuring the support of the barons (generally with each new coronation as a way of establishing de facto support) but with the rise of Parliament (which has no connection to Magna Carta) and the decline of the feudal system this happened less and less. It was last reissued in 1415. It’s absence from legal discourse under the later Plantagenets and the Tudors is evidence of how outdated and irrelevant its feudal contract had become.

3. But it was revived! Edward Coke fell out with James VI and I and subsequently devoted his life to drawing firm limits around the power of the Stuart kings. He dragged out Magna Carta from obsolescence and presented it in much the terms we think of it now - as a fundamental legal principle limiting the power of the State. This was, as we have seen, somewhat ahistoric. In particular, he chose to interpret the word “liberty” as meaning not “a right or power agreed in contract” which is how the king and his barons would have read it, but as “a fundamental freedom”. In his project to use Magna Carta to attack the absolute power of the Stuart monarchs, Coke was wildly successful. By grounding his (actually fairly radical) conception of the rights of the citizen against the Crown in an ancient document, he was able to present his ideas as a return to tradition. Coke, and his revival of Magna Carta, were instrumental in winning of Parliament against Charles - notably in passing the Petition of Right. But it’s a con.

4. It’s a con that led to many good things. In England, the Petition of Right was a significant step on the road to the Civil War, out of which (eventually!) came the notion of constitutional monarchy. In turn, the debate over the rights of kings heavily influenced thinking in the American colonies; Magna Carta was invoked against George III and it (or at least Coke’s perception of it) underpins the notions of due process expressed in the Fifth Amendment. Much American jurisprudence (inc. 60 Supreme Court decisions) refers to Magna Carta.
   In the UK, not so much. The City of London still retains its ancient liberties but it is a long time since a British Citizen has been able to rely on Magna Carta. Although the articles above ostensibly have legal force they are rarely, if ever, cited by lawyers or judges. (pdf)

@Jonathon Sumption

Ironically, Magna Carta has not fared as well in the courts of the country in which it was born. Currently only three clauses of Magna Carta remain on the statute book. Even they have a certain archaic ring. They are the clause protecting the privileges of the Church, the clause protecting the privileges of the City of London and the 29th clause of the 1225 charter, which reproduces Articles 39 and 40 of the 1215 document. Magna Carta has been cited in nearly 170 judgments of the superior courts in England since 1900. In almost every case, the reference has been to Article 39 [surely 29? Stanislaus] of the 1225 Charter. In almost every case, it has been largely rhetorical. On the rare occasions when the courts have been presented with a case in which it might actually make a difference, the judges have shied away.
Quite recently, a case was decided in the Appellate Committee of the House of Lords in which it might have been decisive. The case was R v Secretary of State for the Foreign and Commonwealth Office ex parte Bancoult [2009] 1 AC 453. The facts were that the Crown had a prerogative power to make laws for British colonies. It exercised this power 1971 by making an ordinance expelling the entire population of the British island of Diego Garcia in the Indian Ocean so that it could become a US military base. Colonial laws were valid only so far as consistent with English law. So the issue was whether the ordinance was consistent with the 29th clause of the 1225 version of Magna Carta. The House of Lords held the ordinance to be valid. Lord Hoffmann, speaking for the majority of the committee, acknowledged that Magna Carta forbade exile unless authorised by law. But, he said, it did not curtail the power of the lawmaker to make whatever laws it saw fit. In his view the right which it created was not so fundamental that the Crown could not take it away in the exercise of its prerogative power to make law. Sir Edward Coke would be turning in his grave. But Lord Hoffmann was actually right. Magna Carta guarantees very little.

So what? Does it matter if our understanding of Magna Carta is based on wilful misinterpretation? Even if (from a UK perspective) it doesn’t actually guarantee any rights at all, doesn’t it have value as a symbol? Well, maybe. But for the sake of presenting the alternative view, I’ll finish with two quotes from my sources on this:

@Jonathon Sumption

So when we commemorate Magna Carta, perhaps the first question that we should ask ourselves is this: do we really need the force of myth to sustain our belief in democracy? Do we need to derive our belief in democracy and the rule of law from a group of muscular conservative millionaires from the north of England, who thought in French, knew no Latin or English, and died more than three quarters of a millennium ago? I rather hope not.

@Jack of Kent

Symbolism is important. And what Magna Carta is symbolic of is not a great English constitutional principle, but the lack of one. It symbolises the capacity of people to nod-along at being told they have fictional and non-existent rights instead of having rights which can actually be enforced. It symbolises that people are content with believing in fairy tales.

Those with political and legal power know this. It is safe for the government to want you to celebrate Magna Carta, which you cannot rely on in court, whilst it – for example – seeks to repeal the Human Rights Act, which you can.

Does Magna Carta mean nothing to you, asked Tony Hancock. Sadly, to the extent it matters, Magna Carta means almost nothing at all.

[Stanislaus]

The Jack of Kent blog I quote, and the two Jonathon Sumption speeches linked to therein, a well worth reading in full.

Blog.

Sumption speech 1.

Now I have nothing against the liberty of the subject, the rule of law, the Human Rights Convention, legal aid, democracy, motherhood and apple pie or even international marketing opportunities for lawyers. But I do have a problem with the distortion of history to serve an essentially modern political agenda. Claims like those which I have just cited are high-minded tosh. They represent the worst kind of ahistorical Whiggism. They encapsulate the view mocked a generation ago in a famous essay by Herbert Butterfield, that the past can be viewed as an accident-prone but on the whole persistent march towards the manifest rightness of our own values.

Sumption speech 2.

At this point, I have a confession to make to you. I am a Magna Carta sceptic. I have no problem about the values which the charter is commonly supposed to express. But I have the utmost difficulty in finding them anywhere in the charter. There are no high-flown declarations of principle here. No truths are held to be self-evident. No rights are declared to be inalienable. No claims are made to universal validity. Medieval latinists were perfectly capable of flights of rhetoric, but there aren’t any in Magna Carta. The document is long. It is technical. And it is turgid.

[FeAudrey]

@Stanislaus

… well worth reading in full …

If we’re going to be reading stuff in full, here’s the text of the document itself in modern English:

http://www.bl.uk/magna-carta/articles/magna-carta-english-translation

And an image of the original:

http://www.bl.uk/britishlibrary/~/media/bl/global/magna%20carta/collection%20items/magna-carta-1215-cotton-augustus.jpg

[Mean_Mr.Mustard]

This seems appropriate:

Tour Guide: “It was on this very spot that the Magna Carta was signed”

Voice from the crowd: “When was that?”

Tour Guide: “1215”

Blonde tourist: “Darn, we missed it by twenty minutes!”
mmm

[Little_Nemo]

@Stanislaus

I’ve seen a lot of stuff lately suggesting that Magna Carta’s status as foundation of liberty is much more a mythic truth than an actual one.

The Magna Carta promised some fundamental aspects of due process.

In future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it.

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.

To no one will we sell, to no one deny or delay right or justice.

[Stanislaus]

@Little_Nemo

The Magna Carta promised some fundamental aspects of due process.

To whom? Who is the “we” here? What effect did Magna Carta have on the rights of a Jewish moneylender, or a peasant, or a miller?

This was directed to a specific grievance of the barons against King John. It is a technical subject on which scholars are not agreed. In summary, since the 1160s, the King’s justices had enjoyed exclusive jurisdiction over all disputes between free men about title to freehold land. But in the case of disputes between the King’s tenants-in-chief, essentially the baronage and the richer knights, the King enjoyed a personal judicial competence which was inherent in his position as their immediate feudal superior. John had been in the habit of giving judgment personally in such cases, with only his lowly household knights and officers present instead of the great men who could ordinarily have expected to attend on such occasions. There was a large political element in many of his decisions. He had unquestionably sold justice, by demanding large sums, known as “proffers” in return for access to his court. And on occasions he had denied justice. The baronage therefore found themselves squeezed. Their own tenants had unrestricted access to the King’s justices for their claims, but they themselves were dependent on the vagaries of the King’s will for their claims against each other. This was what Articles 39 and 40 were about. They imposed on
the King himself the same standards of justice as were already required of his professional judges.

Magna Carta was about holding a wayward King to the already commonplace standards of justice. It is not a statement of constitutional principle, it is a contract between a feudal monarch and his vassals.

It is only because of Coke, and his influence on Locke and English libertarianism, and thus on the Founding Fathers, that Magna Carta is seen as a foundational document. But Coke’s interpretation wilfully ignores the purpose of the charter, the status of the signatories and even the meaning of terms like “liberty”. Which was all to the ultimate good, but presenting a contractual dispute between king and barons as a nascent constitution is mythical thinking.

[Little_Nemo]

@Stanislaus

Magna Carta was about holding a wayward King to the already commonplace standards of justice.

You’re acting like that’s some trivial point. “Well, everyone else already had to obey the law. So the Magna Carta only extended that to one more person. No big deal.” But the King was a pretty significant exception even if he was only one person. So telling the King he had to obey the same laws that everyone else had to obey was a big deal.

And while it’s true that the majority of the Magna Carta was concerned about contractual obligations between the King and the nobility, the sections I referred to applied to all free men.

Finally, there’s the reality of subsequent history. You can look at the way the monarchy developed in England with the Magna Carta and compare it to the way other monarchies developed in Europe in places without an equivalent check on monarchic powers.

[AK84]

Its not like the Magna Carta invented Due Process. That is a 21st Century concept, by which I mean 21st Century BC, the Code of Ur-Nammu

[Small_Hen]

Lisa: In 1215 at Runnymede, do da, do, da.
The nobles and the king agreed, oh da doo da day…

Carry on.

[Baron_Greenback]

The Children’s BBC Horrible Histories team have a good explainer video about the issues behind the creation of the document. It’s done via the medium of rap, of course…

Horrible Histories | Epic Magna Carta Rap Battle | CBBC

[Muffin]

Thanks for the links, Stanislaus.

[Tim_T-Bonham.net]

Doesn’t appear to be any signatures on it.

Indeed, could most of those barons of 800 years ago read & write? Or even King John?

[AK84]

Most powerful people would use their own Seal and or Cypher.

[Little_Nemo]

@t-bonham@scc.net

Doesn’t appear to be any signatures on it.

Indeed, could most of those barons of 800 years ago read & write? Or even King John?

I don’t know about the barons but King John was certainly literate. He owned a large collection of books and had a reputation in his time as a reader.

[usedtobe]

nm