Magna Carta III
Bill Long 1/14/05
On the History of Interpretation of the Charter
In the previous essay I introduced four approaches to MC, culminating (a word carefully chosen!) with the Whig Interpretation of History, which sought to place MC at the beginning of a development of individual rights that reached perfection or full flowering in the days of the "Whig" writer. The Whig interpretation has been powerful and long-lasting, for it appeals to the past to justify and even sanctify the present. History is used, therefore, to buttress the status quo.
One of the benefits of this view of history is that you do not have to find rights fully developed in MC which are only being "rediscovered" today (as in Coke's approach). Rather, you can discover them as imperfectly articulated gropings for something that receives its full efflorescence only in our day. It is as if history, for the "Whig" interpreter, is like a flower that will surely open into its full bloom, though it must begin in a bud or a seed. Many people like this kind of history because it not only "connects" us to the past by showing how we are "building" on others, but it gives a sense of rightness, thoroughness and finality to the institution in our day that is being studied. Take an institution--trial by jury, for example. The "Whig" would look for its "first indications" in MC or other documents, then trace its "development" over the years, with its final "perfection" in our own day. The Whigs are correct in that things develop from things; however the sense of historical inevitability and perfection (or rightness) of the present would be attacked by later historians.
5. Magna Carta as Feudal Document
We can only this understanding (developed in the early 20th century) of MC in connection with the "Whig Interpretation." The 20th century interpreters wanted to root MC so fully in its historical context that nearly all of its meaning was to be sought in its 13th century world. That is, the feudal world of the 13th century, with lords and vassals and feudal incidents and castles and scutages and all those kinds of institutions were not only presupposed or mentioned in MC but they are the only proper world in which to interpret MC. This literature is very easily accessible today, and McKechnie's commentary on MC, first published in 1905, with later editions, typifies this approach. For example, in the 1912 edition, commenting on the most famous chapter of the 1215 Charter (39--judgment by "the judgment of his peers and/or the law of the land"), he cites Coke and the "traditional interpretation:"
"The traditional interpretation has thus made it, in the widest sense, a promise of law and liberty and good government to everyone. A careful analysis of the clause, read in connection with its historical genesis, suggests the need for modification of this view (p. 376)."
That is, historical investigation would curb the widely exaggerated claims of previous scholars regarding the meaning of the chapter. We should look at this approach as a helpful corrective to the Whig Interpretation.
6. Contemporary Approaches
It is not easy to characterize contemporary scholarship, as if all scholars flew under one banner. Yet, the leading historian of MC today is JC Holt, a retired professor from Cambridge University. He seems to want to take the "best" from 4 and 5 in creating his interpretation of MC. That is, he is a historian, and so he firmly anchors MC in the context of 12th century English and French society. As a result, he observes that MC is a rather "typical" document of the period, and then give examples of similar grants of rights and privileges from France, Germany or other places on the Continent around this time. Yet, he is also fully aware of the continued resonance of MC even though only three paragraphs of it are "good law" in England today. While not arguing that the "small beginnings" of MC "grew into" the "wonderful" structures of today, he does not shy away from pointing out that it is proper to find the roots of some contemporary legal principles and institutions in MC.
However, his work on MC differs from McKechnie in that he immerses himself in the Pipe Rolls and other documents from the Henrician period (Henry II--1154-1189) which, to be fair to McKechnie, were not availble 100 years ago, in order to enrich our understanding of the era and people who produced MC. Thus, he both wants to diminish MC's "uniqueness" by showing that its provisions are reflected in many other documents of the time (as well as the fact that some of the provisions, like those relating to the Jews--ch. 10, 11 in 1215 MC--were not very far-reaching or helpful) as well as recognize the enduring value of MC as a charter of liberty.
Thus, as I come to MC I do not come to it "pure," as if I am one of Keats' watchers standing and staring at the Pacific with "wild surmise" on a "peak in Darien." I come to MC ready to be shaped by previous generations of interpreters. My approach in the following essays is to review some of the leading provisions of MC (1215 and later), grouping them by categories, in order that you may learn the general content, and 13th century significance of the provisions. But I do so aware of its iconic status in English and American law and political theory. With this sort of "Holtean" approach, let's get to some of the provisions of MC.
Copyright © 2004-2008 William R.Long