- Rudyard Kipling

Ah the Magna Carta. Just mention those words and the true-blooded Englishman feels his breast swell with pride. For from this sacred document flow those rights and privileges that have truly made this land, this sceptred isle, the greatest country the world has ever known. Every school child knows the story of how bad King John was forced to sign the document at Runnymede in 1215 and how since then their liberties have been protected by the light of this great charter. It is England’s constitution, sacrosanct and revered for nearly eight hundred years, guaranteeing that we shall ever be free from the yoke of tyranny and oppression.

Sort of.

There are just a few small inaccuracies in this tale. Firstly is the date, 1215. The famous charter signed (or in fact, sealed rather than signed) in 1215 was repealed a few months later. It was, in effect, a peace treaty that concluded a civil war and King John sealed it as a matter of expediency under considerable coercion. It was annulled by the Pope, of whom John was briefly a vassal for tactical reasons. At this point the charter of 1215 ceased to be a part of English law. This, incidentally, includes the famous ‘Clause 61’ that is dubiously relied upon by some conspiracy theorists today to justify their ‘lawful rebellion’ – by which they usually mean not paying their taxes or breaking the speed limit.

Nevertheless, Magna Carta is still a part of English Law. It has been reissued several times, in 1216 (much shorter than the original), 1217 (also shorter than the original), 1225 (even shorter still, but the first charter to enter the law properly) and in 1297. It is this last charter that still forms part of the law today.

Sort of.

England has never had a written constitution in the modern sense. It has a constitution of course, and with a great deal of effort it is possible to write down the workings of the state at any given time. However, they are ever changing. This is due to a fundamental principle of English law, that of Parliamentary Sovereignty. This is the concept that no Parliament may bind its successors. In other words, a law passed today may be repealed at any time in the future and it is not possible to pass a law saying otherwise, for that law itself could be repealed.

For all its historical significance, Magna Carta is a law like any other and it can be repealed by Parliament. In fact, for the most part, it has been. Today, only three clauses remain on the statute books, the remainder having been done away with, for the most part during the nineteenth century. This is of course a travesty! The rights and privileges of Englishmen have been denied by tyrannical Parliaments, their liberties quashed and held at nothing! It is a wonder that the people have not risen in rebellion at this outrage!

Sort of.

For the most part Magna Carta was a feudal document that dealt with the intricacies of medieval property law. It had long ceased to be relevant by the time of the Tudors and although it lasted on the statute books for a very long time, it was largely considered to be irrelevant by legal scholars. Its significance lay in its symbolism. It achieved that special status often afforded to writing – for once something is written, it cannot be denied. People who had never read it, who in many cases could not read, nonetheless had the impression that it was important, that it was the foundation of their liberties. In the turbulent period of the seventeenth century it was frequently cited as the cornerstone of good governance and anachronistically portrayed as the authority for institutions such as the jury trial (in fact in 1215, Ordeal was the preferred method and its abolition by the pope that year caused all sorts of problems).

There remain three articles of the charter (1297 version) that are still in force. They are:

I. FIRST, We have granted to God, and by this our present Charter have confirmed, for Us and our Heirs for ever, that the Church of England shall be free, and shall have all her whole Rights and Liberties inviolable. We have granted also, and given to all the Freemen of our Realm, for Us and our Heirs for ever, these Liberties under-written, to have and to hold to them and their Heirs, of Us and our Heirs for ever.

This does not have a lot of legal meaning today. It more-or-less states that the Church of England will be free from royal interference and that the charter applies both to the king and the people forever, as opposed to just those who are alive at the time.

IX. THE City of London shall have all the old Liberties and Customs which it hath been used to have. Moreover We will and grant, that all other Cities, Boroughs, Towns, and the Barons of the Five Ports, and all other Ports, shall have all their Liberties and free Customs.

The City of London, that is the square mile of the old Roman town, has certain legal privileges concerning its own governance that still exist today. Broadly the guilds have a degree of political authority within its boundaries.

XXIX. NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.

This is the important one.

Sort of.

Certainly this passage appears to be important, it has been interpreted as guaranteeing a jury trial and the right to obtain justice. This is, however, somewhat spurious. The key passage is “or by the Law of the Land.” In other words, the monarch may not of their own volition kill, exile or imprison their subjects or deprive them of their property. That may only done by the law. This is an important point of course, but it is not much of a limitation. Parliament may still pass a law depriving a person of their liberty – or even their life if they so choose – and it would be valid. Magna Carta never prevented the use of Acts of Attainder. Recently there has been some speculation that the restrictions on legal aid may contravene the obligation not to sell or deny justice, but again this has little basis in reality. This was simply a prohibition on naked profiteering by the monarch (and even then it was probably little-obeyed). Fees to cover legal expenses have always been levied both by the state and lawyers, Magna Carta never sought to prevent this.

If it has any significance today, Magna Carta’s lies solely in it symbolism. It represents the idea of constitutionalism, that there must be some limits on the power of government and no-one, not even the king may be above the law. It started a long tradition of attempts by the ruled to force their rulers to act justly and fairly, and from the tradition it started sprung much of modern political thought. It may no longer have much practical relevance, but it undoubtedly deserves its place in history.

Sort of.