Magna Carta - myths and mysteries of the document at the basis of democracy

Monday, June 15, 2015, marks the 800th anniversary of the date upon which King John is widely believed to have set his seal upon what is known as Magna Carta, in a field beside the Thames called Runnymede, between Windsor and Staines.

Magna Carta was, to Winston Churchill, "a law which is above the King and which even he must not break". To Pitt the Elder, it was "the Bible of the English Constitution".

The Charter, in a later form, revised and reduced, remained part of the law of England until the mid-19th century; four chapters are still on the statute book. It is part of the law of Australia and even of the Australian Capital Territory as a consequence of a review in 1973.

Its fame partly derives from enduring requirements that arrest or imprisonment will be based on "the lawful judgment of peers or by the law of the land"; that "To no one will we sell, to no one will we refuse or delay right or justice"; or that a "free man shall not be amerced for a trivial offence except in accordance with the degree of offence".

Many provisions are deeply rooted in medieval society though some still have relevance today: subject to specified qualification, "No widow shall be forced to marry so long as she wishes to live without a husband". Other provisions, for example, relating to repayment of debts to Jews, would be held objectionable today and did not survive long at the time.

The Charter's contemporary fame, greatly exceeding that of comparable documents such as the Petition of Right (1628) or the Bill of Rights (1689), owes something to humour.

1066 and All That viewed the Charter as "the chief cause of Democracy in England, and thus a Good Thing" [emphasis added].

And comedian Tony Hancock, playing a jury man, asks of his fellows: "Does Magna Carta mean nothing to you?'

"Did she die in vain?"

Fame in more recent centuries also comes from association with John, an "awful king", and his infamous pursuit of Robin Hood.

But the Charter's continuing importance hardly rests either on its substance or its place in popular culture. Indeed, as its most distinguished historian wrote: "Historically John's Charter is of great interest, but legally it is little more than a curiosity ... Within a couple of months ... it had been dropped to the ground ... and then knocked on the head by the pope."

Moreover, it was "far from unique, either in content or in form". In the 12th and 13th centuries comparable royal documents may be found throughout Europe, in northern Italy, Germany, Hungary and in the kingdoms of the Iberian peninsula.

Erwin Griswold, Dean of the Harvard Law School, aptly espied its significance in what "it was made to be" rather than "what it was".

And what has it been made to be? Sir Edward Coke, the great jurist who took issue with the early Stuart kings, saw it "for the most part declaratory of the principal grounds of the fundamental laws of England". Lord Bryce, whose writings on American government were influential in the making of the Constitution of Australia, thought "it held together free governments not only in England but wherever the English race has gone and the English tongue is spoken".

Another scholar, writing a century ago, thought it represented "the principle of government by law".

Lord Irvine of Lairg, Lord Chancellor, 1997-2003, speaking in Canberra, saw the spirit of Magna Carta as commitment to the rule of law, a "chapter in the continuing history of the struggle between power and freedom".

These are not simply modern, retrospective views. One annalist , writing shortly after King John's death, observed tartly of the circumstances from which the Charter emerged, of the ills it was intended to remedy: "Instead of law there was tyrannical will".

A tract circulating in London at the time observed: "Right and justice ought to reign in the kingdom more than depraved will."

Cardinal Stephen Langton, Archbishop of Canterbury in 1215 and present at Runnymede, after whom Langton Crescent, Parkes, is named, complained in his lectures of the avarice of "modern kings".

He urged them to study the law, believing , according to David Carpenter, a major historian of medieval England and of the Charter itself, that "obedience was not obligatory if a king acted wilfully and without judgment".

Much romance and myth surround Magna Carta. One of the more prominent is that the Charter, as it survives, is that to which King John applied his seal 800 years ago on June 15. But, as already noted, that document had a short life of no more than three months. Magna Carta as it has applied in the centuries since was that reissued, with revisions, including deletions, by John's son and successor, King Henry III, in 1225.

Nor did Magna Carta suddenly spring forth ex nihilo. The 1215 document owed much to the Coronation oath of King Henry I, who ascended the throne in 1100. William Blackstone, editor of the first printed edition of the Charter, recorded that "very many of the articles, contained in the charter of King Henry the first, were in substance afterwards repeated in that of King John".

During the eight decades following John's death in 1216 it was on several occasions recalled and reconfirmed (including in 1297, the year from which the copy on display in Parliament House dates). But thereafter it fell from public view for three centuries. Neither the mighty Plantagenet kings nor the formidable Tudors wanted reminders of limits on the powers of kings. When Shakespeare wrote his play King John he did not even mention Magna Carta.

Magna Carta's contemporary standing stems from its revival in the reigns of the Stuart kings, with Coke its principal protagonist. It is a foundation stone in what is now known as the Whig interpretation of history, that British history is one of progress and improvement.

Lord Macaulay, though he spends only a few sentences on the Charter, nevertheless sees it, a century and a half after the conquest, as the great symbol of reconciliation between descendants of the Norman invaders and those of the defeated Saxons.

Sir John Holt, author of an authoritative text on the Charter, thought "Lawyers have been responsible ... for the residual veneration of the Charter".

Herbert Butterfield, in his assault on Whig history, singled out Magna Carta as a major example of studying "the past with reference to the present".

One survey of research in English history could not resist an observation that, as Magna Carta was "being pinned down by scholars and identified as an essentially feudal document", it was being "picked up by smart politicians and lawyers and paraded as a charter of rights and liberties of almost unlimited scope"!

J.R. Nethercote is Adjunct Professor, Canberra Campus, Australian Catholic University.