“Invoke Clause 61 of the Magna Carta,” declared the petition. “The right to lawful rebellion.” Tabled earlier this year on Parliament’s website, the author went on to explain that this ancient legal text specifies that when Parliament has betrayed the people, the people can lawfully storm Parliament.
Now, my medieval Latin is no great shakes, but unless I’m missing something, this nameless petitioner is wrong on a number of counts. First, as any constitutional pedant will tell you, it isn’t the Magna Carta, just Magna Carta, because Latin doesn’t use articles like the and a. Second, the document doesn’t actually have any clauses — in its original form, it was just continuous text.
The clauses have been added on in later versions to make it more comprehensible. And finally, rather importantly, Magna Carta says nothing at all about storming Parliament, which didn’t exist yet, and didn’t have its own building — rather a prerequisite for being stormed — for another 300 years.
In fact, the words usually referred to as Clause 61 set out how 25 Barons may confiscate the property of the king if he defies them (with a special exemption for the Queen and the royal children, who retained the dubious privilege of remaining the King’s property whatever he did).
And yet I understand why this petitioner made his mistakes. He has soared to the Premier League of our national pastime of misremembering Magna Carta: what it was for, what it achieved, and what it means today.
Magna Carta, a treaty signed at Runnymede by King John in 1215 at the behest of his barons, is part of our national myth. Salisbury Cathedral (which owns one of the four original copies from that year) describes it as a “symbol of justice, fairness and human rights”. Lord Denning, a respected judge from the olden days when judges were respected, called it “the greatest constitutional document of all times — the foundation of the freedom of the individual against the arbitrary authority of the despot.”
Oh how charming, and comfortable it is, to imagine that Britain invented human rights and freedom from tyranny. It fits with such a delightful story about England, the Mother of Parliaments and the champion of democracy. It’s the tale told in that ghastly standard historical text of the post-war era, Our Island Story, recently republished after a campaign by a bunch of people who believe the sole purpose of our school system should be indoctrinating every child in the fantasy of English exceptionalism.
But Magna Carta is not the foundation stone of freedom. It was a peace treaty on victor’s terms, establishing an oligarchy of the barons, satisfying their narrow interests and protecting their property from an overbearing king. Read through the text and you won’t find any uplifting prose about the value of humanity: no “life, liberty and the pursuit of happiness”; no “all men are created equal.”
Instead you’ll find a section compelling the removal of all fishing weirs from the rivers of England. You’ll find new laws to prevent Jewish moneylenders from claiming their debts. Rules are set out on how guardians should manage land for any heirs too young to do it themselves. A whole paragraph is devoted to making sure someone called Gerard d’Athee — along with all his relatives — is thrown out of the country as soon as possible.
Magna Carta specifies that no town should be forced to build bridges over rivers, and that the Royal household will no longer take wood for the castle without consent. Magna Carta is page after page of score-settling by grumpy barons, on everything from the return of hostages to the establishment of standard measures of wine, ale and corn (not imperial measurements, traditionalists will be disappointed to hear, but the “London quarter”.)
Of course, there are good bits. Taxes, after Magna Carta, required consent, and couldn’t be imposed by royal fiat. In the document, the King pledges not to “sell, deny or delay right or justice”. The document includes the beginnings of the principle of jury trial when the King promises not to “proceed with force” against anyone except “by the lawful judgement of his equals or by the law of the land”.
But Magna Carta also establishes legal principles that we should shudder at, most notably that no man can be imprisoned on the testimony of a woman, unless it’s for the murder of her husband. All these new freedoms and legal protections apply to free men, and free men alone. Villeins, merchants, and women are clearly lesser subjects. All are to be judged only by their equals: there is no question of challenge to the feudal hierarchy.
All this can be forgiven. There is no reason why Magna Carta, written in 1215, should have anything other than medieval sensibilities and prejudices at its heart. It’s only a problem when we try to pretend that these few hundred words of Latin make Britain, or England, the inventor of freedom and justice — an old democracy which has a right to lecture others who learnt about human rights so much later than we did.
Magna Carta did not give us a democracy or anything approaching universal human rights. Magna Carta did not prevent decades of state-sponsored, religiously motivated persecution, as we oscillated between Catholicism and Protestantism. Magna Carta did not prevent a civil war. Magna Carta did not stop us having constitutional prejudice against Catholics built into our laws until the 21st century. It didn’t stop us deporting British citizens to the Caribbean after 60 years of life in the UK. It’s just a fusty old bit of Latin, full of the prejudices and preoccupations of its time.
We are a young, imperfect democracy, not an old one. Our citizens have had an equal right to vote for only 91 years. That’s nothing to be ashamed of: I love my country, and there is much to love about it. But we’re still making mistakes, and still working on getting freedom right. So marching around the world smugly declaring that we invented freedom 800 years ago doesn’t just do a disservice to history. It distracts us from our obligation to keep reforming, and keep improving, our system of government.
That petitioner was right: our Parliament has let us down. But we don’t need to storm it. We do have the right of lawful rebellion, and it’s our right to vote. Let’s hope we vote in a new Parliament that’s as ready for change as King John was back in 1215.