In 2010 during the formulation of the history curriculum for Australian schools there was uproar when it was discovered that Magna Carta had been left out of the curriculum document. Christopher Pyne, then opposition education spokesman, criticized the authors of the curriculum for this omission, amongst other things. Education commentators such as Kevin Donnelly made the same point. In response the document was changed and students taking what is called History 8, designed for 13 year olds, are now supposed to study the Great Charter.
My interest in this particular subject emerged out of my own work on the role of Magna Carta in both Australian and Commonwealth law. In June 2015 the world will celebrate the 800th anniversary of the Charter and as part of the celebrations the American Bar Association has commissioned a book of papers by scholars on the subject. I was invited to write a paper on Magna Carta in the Commonwealth. The 2015 celebrations will be a huge event arguably of greater significance than the centenary of Gallipoli.
I decided to look at what the various history textbooks designed for Australian school history courses had to say about the Great Charter. With one exception, which I will discuss later, most devoted a mere page, if that, to the charter of 1215, and most are inaccurate.
The common mistakes
1. That King John signed the document
This is wrong for two reasons. First, while John could read but there is serious doubt about whether he could write. Second, and more to the point, Kings did not sign these sorts of documents to signal their assent, they had others attach their seal to the document. This was done by attaching the seal to a ribbon, which was then put through a hole in the parchment. In 1924 and 1948 scholars who examined the four surviving copies of the 1215 version of Magna Carta established definitively that the Charter was sealed not signed. Their detailed descriptions of the copies refer to three of the documents having a seal; in the case of the fourth copy the seal is missing though the place where it had been attached is clearly visible.The practice was for the document to be drafted, then sealed, before being engrossed on parchment. The only book to get this right is the Oxford Big Ideas: History 8 though the glossary at the back of the book contradicts this where it says that Magna Carta was signed by King John. The MacMillan 8, the Nelson Cengage Learning 8, and the Pearson History 8 all claim that John signed the Charter.
2. That the Charter was published
The word published is misleading and might induce a reader to suppose that the Charter was printed. The concept of publication in the thirteenth century did not include printing but copying by hand and by reading out the Charter in churches. Now the obvious question here is did printing exist in England in the thirteen century? The answer is no because movable type printing did not emerge until the publication of the Bible in Mainz, Germany by Johannes Gutenberg in 1455 and in England when William Caxton printed the Dictes and Sayenges of the Phylosohers in November 1477. In the era before printing documents were copied by hand by clerks in the chancery.
3. That the Charter was the origin of democracy
This piece of nonsense appears in a paper issued by the West Australian School Curriculum and Standards Authority 2012 and in several of the textbooks. Pearson History 8 states that "These clauses represented the first steps towards political freedom for all and parliamentary democracy as they protected the rights of people and ensured that even the king was not above the law". The Oxford Big Ideas, History 8 Teacher Kit also says that Magna Carta was "seen as one the first steps towards the development of legal and political rights for "the people" and the start of modern democracy". These statements are potentially accurate only if they are properly explained. There is no reference to voting in the Charter and it certainly was not about democracy. Elections did exist in the thirteenth century and were by a statute of 1275 meant to be free. But the right to vote was only available for a tiny minority of male land holders, since the franchise was based on a property qualification. It was the use of the Charter in later centuries, especially the seventeenth, that enlarged political freedom. It is a mistake to suggest that anyone at Runnymede thought about ideas such as democracy at all. The sentence is an example of the sin of reading present concepts into the past where they did not exist. The Charter was not, as Prime Minister Menzies pointed out to Parliament in 1952, a charter of human rights or a democratic document. It was an agreement between the King and his nobles about how certain medieval grievances would be handled.
4. That the King had to obey the Law
According to the MacMillan History 8 "The Magna Carta stated that even the King had to obey the law". The Charter stated no such thing. The King made a series of promises about how to conduct certain medieval matters but there is no sweeping statement about obeying the law generally. The idea that even the King is not above the law emerged later in the thirteenth century in Bracton circa 1280, though it was hedged about with qualifications and of course was an idea not a reality. No one could sue the Crown in England until 1947 though it was possible to do so in the Australian colonies in the 1850s. The King's prerogative (ie his common law executive powers) were in the thirteenth century extensive and could not be questioned in the courts as Bracton pointed out, a position that lasted at least until the early seventeenth century. Effective remedies to check the Crown, both legal and parliamentary, in other words only came into being in the seventeenth century. The problem is that while the rule of law did gradually emerge, especially with the Bill of Rights in 1689, it takes a knowledge of seventeenth century constitutional history to understand this and that is not covered anywhere in the Australian History curriculum.
What is left out of the textbooks
First, that there were six versions of the Charter in the thirteenth century. Four of them had no statutory status. The Charter of June 1215 was annulled by Pope Innocent III in August that year. He was able to do this because in May 1212 King John had surrendered his realm to the Pope. Shorter versions then appeared in 1216 and 1217, along with a Magna Carta Hiberniae 1216 drafted for Irish conditions. The Charter was given statutory status in 1225 and that act was confirmed in a further act of the English parliament in 1297. Magna Carta 1297 is of course English, and Magna Carta was never the law in Scotland. The document was written in Latin without internal divisions, and only acquired the system of chapters we now use in the eighteenth century.
The 1297 version is important for Australia for two reasons. In 1952 the Commonwealth government acquired one of the 1297 originals for the sum of 12,500 pounds and it went on display initially in the Old Parliament building in 1961. It was then removed to the national library in 1968 and today may be seen in Parliament House.
The other reason the 1297 version is important is that Chapter 29 remains part of the law in the Australian states. In Victoria, New South Wales and Queensland it is part of a local enactment that lists various British (ie Imperial) statutes that are part of the law of the state. These also include the Habeas Corpus Act 1679 (Eng), the Bill of Rights 1688 (Eng), and the Act of Settlement 1701 (Eng). In the other three states Chapter 29 remains part of the law inherited from Britain that arrived on the settlement of the then colony.
Chapter 29 of 1297 provides:
"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".
A version of this article with footnotes is available by clicking here.