Let’s apply some hard history to the 13th century charter governing the obligations flowing between King John and his barons, or at least read the thing (translation here). So says Lord Sumption in a fascinating address to Friends of the British Library on 9 March.
All sides jockey for position at the Magna Carta shrine, but its significance is entirely due to the myth-making tendencies of the seventeenth century politician and judge Edward Coke. Since he plucked the charter quite clean of its historical context, the claims made in its name are extraordinary and downright self-serving:
In his column in the Daily Telegraph, Peter Oborne recently described the European Convention on Human Rights as a “document which entrenches the principles of Magna Carta in international law.” Others have come forward to suggest that the partial abrogation in 2014 of a legal aid system which was first created in 1949 was contrary to Magna Carta. Recently, a Global Law Summit in London, which was essentially an international marketing opportunity for British lawyers, described itself on its website as “grounding the legacy and values of Magna Carta in a firmly 21st Century context.
Sumption is not against liberty of the subject, nor motherhood and apple pie, nor even international marketing opportunities for lawyers, but he does have a problem with “the distortion of history to serve an essentially modern political agenda.”
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.
I’m keeping this post very short, because the speech is imperative reading, and provides such a clear synthesis of feudal history, the relationship between the state and the individual, and the origin of law itself that no summary could do it justice. David Hart Q.C. has reviewed here Lord Judge and Anthony Arlidge QC’s book which similarly wipes away the “political varnish” that has accrued over the centuries, but Sumption manages in a mere eighteen pages long, to decimate Magna Carta as a blueprint for future constitutional development.
In the three centuries which followed the scene at Runnymede, changes occurred in English society which made the sort of issues that the charter dealt with less important. In the first place, Magna Carta had been directed mainly to protecting the financial interests of tenants-in-chief, a very small group of perhaps 150 to 180 men.
Between 1225, when the Charter was overhauled, and its revival in Coke’s Institutes in the early seventeenth century, it was largely forgotten and barely invoked, except by the Church in the 15th century (“although the Church was by now a nationalised industry of which the monarch was the non-executive chairman”). Even now, only three clauses of the original Magna Carta remain on the statute book, and one of those protects the privileges of the church. Nevertheless it has assumed quasi-religious significance in modern society, being cited in nearly a thousand decisions of the US Supreme Court alone. So it is somewhat chastening to be told that
Coke transformed Magna Carta from a somewhat technical catalogue of feudal regulations, into the foundation document of the English constitution, a status which it has enjoyed ever since among the large community of commentators who have never actually read it.
We need to wean ourselves off the myths surrounding Magna Carta in its golden age, and stop worshipping antiquity whilst remaining “frighteningly ignorant” of it.
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