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Is the Magna Carta British or English?

Posted by Administrator @ 3:41 pm on 28 February, 2007.
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We have received the following comment from one of our readers. There is some disagreement amongst the MCP contributors as to whether the commenter has a point. Thus, with some amusement, we place the on-going discussion here.

The responses from our contributors continue in the comments - you can of course add your own 5s18d.

“Sir,

“I object to the national origin with which you have attributed the Magna Carta (1215) and the Bill of Rights (1689). You have branded them as being of a Great British origin.

“This is inaccurate rubbish, Great Britain didn’t even exist when these 2 great documents were drafted and signed.

“They are both English in origin. Drafted for the benefit of the people of England, living in the country of England. The Magna Carta is an English document, the Bill of Rights is an English document.

“There, that wasn’t too hard was it?

“It is VERY IMPORTANT that people should NEVER try to rewrite history. You should correct these two glaring inaccuracies on your web site sources without delay….”

13 Comments

  1. With some amusement -
    The ruling authority in Britain at the time of the Magna Carta, or if you prefer in England, was French, or if you prefer Angevin. Meanwhile, the inheriting state of that piece of land is the United Kingdom. So as the British, UK or Angevin Empire continues to evolve and relocate, very possibly it will become England, or even the EUSSR.

    magnacartaplus.org is primarily concerned with the development of human freedom, rather than esoteric border disputes.

    Regards
    abelard

    Comment by abelard — 28 February, 2007 @ 3:43 pm | Edit This


  2. Thanks for raising this. I confess I’d not paid a great deal of attention to the MCP copies of the Magna Carta and the BoR until now, being more preoccupied with the news section/blog and the abstracts I wrote.

    Anyway, I’m afraid I think [the reader] has a point.

    The site currently describes the Magna Carta as “the Magna Carta of Great Britain” and in the list on the front page it is described as “the Magna Carta or Charter of Great Britain”. I’ve never heard the MC referred to as “the Charter of Great Britain” before seeing it on MCP.

    I think both terms above are misleading for one simple reason. The MC applies in *English* law. It never applied in Scottish law and therefore never applied across “Great Britain”. The same can be said of the 1689 Bill of Rights.

    To describe that Magna Carta as being “the Magna Carta of Great Britain” or “the Charter of Great Britain” could mislead someone into thinking it applied to “Great Britain”. The points you make in the proposed response are simply irrelevant to this issue.

    Also, it seems to me that the fact that these documents originated in and applied to a particular jurisdiction is an important one for an accurate history of “the development of human freedom”.

    Cheers,

    James

    Comment by James — 28 February, 2007 @ 3:46 pm | Edit This


  3. Hello James

    1 Please would expand on that the MC doesn’t or didn’t apply to Scottish law.

    2 Found this in the OED:

    The proper name of the whole island containing England, Wales, and Scotland, with their dependencies; more fully called Great Britain; now also used for the British state or empire as a whole. After the OE. period, Britain was used only as a historical term, until about the time of Henry VIII and Edward VI, when it came again into practical politics in connexion with the efforts made to unite England and Scotland; in 1604 James I was proclaimed ‘King of Great Britain’; and this name was adopted for the United Kingdom, at the Union in 1707. After that event, South Britain and North Britain are frequent in Acts of Parl. for England and Scotland respectively: the latter is still in occasional (chiefly postal) use. (So West Britain, humorously or polemically for ‘Ireland’.) Greater Britain is a modern rhetorical phrase for ‘Great Britain and the colonies’, ‘the British Empire’, brought into vogue in 1868.

    Regards.

    abelard.

    Comment by abelard — 28 February, 2007 @ 3:48 pm | Edit This


  4. Hmm, I’m not sure what you want here…

    I’ll make a few points though:

    1. In 1215 when the MC was first produced, Scotland was ruled by Alexander II from the House of Canmore.

    2. Scotland was an independent nation with its own monarchy and laws right up to the union of the Crowns under James VI (James I of England). Ergo laws made in England to constrain an English monarch did not apply in Scotland.

    3. Even after the union of the Crowns in 1604, Scotland had its own Parliament up until 1707. The 1689 Bill of Rights was an enactment of the English Parliament at a time when Scotland still had a separate Parliament.

    I’m not sure what else I can say about this!

    2 Found this in the OED:

    The proper name of the whole island containing England, Wales, and Scotland, with their dependencies; more fully called Great Britain; now also used for the British state or empire as a whole. After the OE. period, Britain was used only as a historical term, until about the time of Henry VIII and Edward VI, when it came again into practical politics in connexion with the efforts made to unite England and Scotland; in 1604 James I was proclaimed ‘King of Great Britain’; and this name was adopted for the United Kingdom, at the Union in 1707. After that event, South Britain and North Britain are frequent in Acts of Parl. for England and Scotland respectively: the latter is still in occasional (chiefly postal) use. (So West Britain, humorously or polemically for ‘Ireland’.) Greater Britain is a modern rhetorical phrase for ‘Great Britain and the colonies’, ‘the British Empire’, brought into vogue in 1868.

    Indeed that name is used in the Act of Union 1707 (aka the Treaty of Union 1707).

    Cheers,

    James

    Comment by James — 28 February, 2007 @ 3:51 pm | Edit This


  5. It seems to me that some correspondents are seeing the Magna Carta as a static, dead document applying only, or primarily, to the time of its production.

    Whereas I see it as a living document that has had continuing effects through hundreds of years of change and human development. This was reflected in my original reply and in referring to Magna Carta as British.

    If I were to regard it as a static document, living only in 1215, my inclination would be to regard it as an Angevin document, rather than English or British.

    The very reason for setting up MagnaCartaPlus, as was set out in its founding document, was motivated by violent perceived attacks on Magna Carta in the UK, as the history of Magna Carta continues to unfold in the modern and changing real world.

    from my perspective, Magna Carta is an ongoing part of human experience. Linking it ‘too’ firmly, or taking those links ‘too’ seriously, seems to me both unrealistic and potentially damaging.

    Regards.

    abelard

    Comment by abelard — 28 February, 2007 @ 4:14 pm | Edit This


  6. I would add to abelard’s comments that this focus on England seems pretty silly to me. For example, the Constitution of the United States of America was written and passed at a time when there were only thirteen states. Does this mean that one must refer to the Constitution of New York,… and South Carolina?! Or even only the Constitution of the twelve states that signed orginally?! Or that the Constitution is not Alaska’s or Nevada’s or …?!

    Further, the U.S. Constitution was largely informed by Magna Carta. I would be more inclined to extend the title to “the Magna Carta of Great Britain, America, Canada, Australia, New Zealand,…”, rather than restrict its provenance to the signing day, when the signatory ‘English’ nobles were hardly English!

    Regards.

    the auroran sunset.

    Comment by the auroran sunset — 28 February, 2007 @ 4:31 pm | Edit This


  7. I’ll start with this comment from the auroran sunset:

    I would add to abelard’s comments that this focus on England seems pretty silly to me. For example, the Constitution of the United States of America was written and passed at a time when there were only thirteen states. Does this mean that one must refer to the Constitution of New York,… and South Carolina?! Or even only the Constitution of the twelve states that signed orginally?! Or that the Constitution is not Alaska’s or Nevada’s or …?!

    This comparison with the Magna Carta does not hold up. When Alaska joined the United States, they presumably signed up to be governed in accordance with the US Constitution, thus the jurisdiction for the latter expanded. This was not the case for the Magna Carta and Scotland. Scotland was maintained as a separate legal jurisdiction, albeit subject to the legislation of the Wesminster Parliament and the authority of the Crown.

    As for the US, it is not the Magna Carta that enshrines liberties there, but the US constitution, though I grant the US constitution was inspired by the MC and the 1689 Bill of Rights. The US did not opt to join the jurisdiction of England, (quite the opposite I think!), even if they were motivated by attacks on some of the ideas enshrined in the Magna Carta!

    Anyway, I think the problem here is one of terminology. The standard usage of the term “the Magna Carta” is to refer to the historical document produced in 1215 which is considered to be a core document in the development of English law (even if it was “Angevin law” at the time!), as well as an important development in the history of civil liberties/human rights/constitutional government that inspired many other foundational documents since.

    It seems to me that abelard’s preferred usage for the phrase is to refer to the ideas set out in the MC and which have evolved since. I agree these are important ideas, and that they underpin “the West”’s concepts of limited/constitional government and liberty (especially in more recent formulations like the US constitution). But to refer to them as “the Magna Carta” or “the Magna Carta of Great Britain” is to invite confusion with the historical document (due to the standard usage of the phrase).

    I also fail to see why it is damaging to use the phrase “the Magna Carta” to refer to the historical document rather than the ideas it embodies.

    abelard refers to MCP’s founding document. Unfortunately the link in the comment above is broken, but I think you’re referring to the Misson Statement. This refers to “civil liberties” and the attacks on civil liberties, not “the Magna Carta” and attacks on that. It seems to me the term “civil liberties” is referring to what you seem to be referring to as “the Magna Carta”.

    Comment by James Hammerton — 1 March, 2007 @ 9:08 pm | Edit This


  8. This comparison with the Magna Carta does not hold up. When Alaska joined the United States, they presumably signed up to be governed in accordance with the US Constitution, thus the jurisdiction for the latter expanded. This was not the case for the Magna Carta and Scotland. Scotland was maintained as a separate legal jurisdiction, albeit subject to the legislation of the Wesminster Parliament and the authority of the Crown.

    You seem to be contradicting yourself! Scotland had a ’separate’ legal system, but was subject to central law. In other words, on some matters - presumably the most important - Angevin law was supreme. On other, more minor, matters Scotland was allowed to maintain a degree of independence. Meanwhile, “Alaska and other states maintain ’separate’ legal systems, albeit subject to the legislation of the D.C. Parliament and the authority of the Constitution.” How is that so different? Meanwhile again, as I understand it, the Scots have keep closer to the Magna Carta, for example resisting the dilution of the right to a jury trial - ie at present the Magna Carta is, in practice, more Scottish than English!

    The US did not opt to join the jurisdiction of England, (quite the opposite I think!), even if they were motivated by attacks on some of the ideas enshrined in the Magna Carta!

    I think you misunderstand the history. For a hundred or more years the America Colonies were ruled under British law. It was the Parliament’s attempts to remove the protection of British law from the colonies - to say that British Law does not apply to the Colonies and the Citizens of the Colonies are not real British Citizens - that pushed the States to Independence. This after many years of petitioning the King and Parliament to try to restore the rule of British law in the Colonies. The early Americans were extremely loyal subjects of the British Crown and Independence was long resisted on that basis. The U.S. Constitution is in a very real sense a restoration of British Law, not an opt out. Obviously they also added some improvements. In fact the U.S. Constitution, and the process of its creation and adoption, have many similarities to the circumstances and the aims of MagnaCartaPlus.

    Finally you seem to muddling yourself with the name business. Under your logic, the document should be referred to the “Angevin Magna Carta”, and most definitely not the “English Magna Carta”. I can see no circumstance under which the latter would make sense - the former would at least make sense in the narrow historical sense you seem to prefer. I think it would also make sense to just refer to it as “the Magna Carta”. However, if you wish to refer to it in the context of present living law, rather than just the time of its signing, “the British Magna Carta”, or some such variant, is clearly the most accurate.

    It then comes down to which you want: do you want to only refer to the history - in which case you must call it “the Angevin Magna Carta”, or do you want to refer to in the wider context, in which case the present designation is fairly optimal. I can see no possible justification for calling it “the English Magna Carta” as the original comment suggested, or as you *seem* to be suggesting.

    In the context of a website that is far more concerned with the living breathing effects and development of civil liberties law, I would need a lot of persuading that the historical designation is more appropriate.

    Meanwhile, this is all very silly!

    Regards.

    the auroran sunset.

    Comment by the auroran sunset — 3 March, 2007 @ 1:13 pm | Edit This


  9. i believe the document has no title but just launches off:-
    “John, by the grace of God, king of England, lord of Ireland, duke of Normandy and Aquitaine, and count of Anjou,”

    perhaps we should call it the magna carta of king john, england, ireland, normandy, aquitaine, and anjou !

    more seriously, i’m very content it is just called the magna carta….
    this looks like a scan of the document…
    http://www.archives.gov/exhibits/featured_documents/magna_carta/images/magna_carta.jpg
    anyone up for an investigation in the british museum?….

    i’m inclined to post this discussion to upm for further input…do i have ‘your’ permission

    regards…

    Comment by abelard — 3 March, 2007 @ 3:26 pm | Edit This


  10. more seriously, i’m very content it is just called the magna carta….

    Looking at the Magna Carta page and the Declaration of the Rights of Man page, I see that both have the historical title - ie without national assignment - for the main title. Both have a national assignment only in a small sub, explanatory title. Thus, I would not be happy with changing the Magna Carta reference to not refer to Great Britain without also similarly changing “the French Bill of Rights” on the other page. I can’t see either change making sense as they are both explanatory and the pages would lack by their absence.

    Comment by the auroran sunset — 3 March, 2007 @ 3:43 pm | Edit This


  11. You seem to be contradicting yourself! Scotland had a ’separate’ legal system, but was subject to central law. In other words, on some matters - presumably the most important - Angevin law was supreme. On other, more minor, matters Scotland was allowed to maintain a degree of independence.

    There is no contradiction. After the Act of Union, Scotland maintained it’s separate legal system but legislative power resided in Westminster. I.e. Scotland was (and still is) subject to Westminster’s statute law produced since the Act of Union, however it is not subject to the laws that applied in England prior to Union or to legislation passed by Westminster prior to the Union.

    The Act of Union 1706 (1706 was the year the legislation passed at Westminster, Union did not occur until 1707 when the legislation passed in Scotland) as it currently stands after various amendments made since Union can be seen here:

    http://www.statutelaw.gov.uk/legResults.aspx?activeTextDocId=2078400

    Meanwhile, “Alaska and other states maintain ’separate’ legal systems, albeit subject to the legislation of the D.C. Parliament and the authority of the Constitution.” How is that so different?

    Scotland is subject to the *legislation* of the Westminster parliament (and to the authority of the Crown), but was not subject to the authority of the Magna Carta or the 1689 Bill of Rights as they preceded Union. At least, I don’t believe that incorporation of either into Scots law was a stipulation of the Act of Union. I.e. the sources of Scottish law were/are what was in force in Scotland at the time of Union 1707, plus any Westminster legislation produced since union (plus the stipulations of the Treaty of Union itself).

    The U.S. Constitution is in a very real sense a restoration of British Law, not an opt out.

    Except the British monarch, courts, legislature and government have no authority in the US!

    I grant the US constitution enshrines many concepts important in British law at the time and I even grant that the colonists were trying to restore “British law” to the US, but they ended up having to declare independence, enshrine those ideas in a new constitution to and adopt a new form of government to do so, so yes they did “opt out”. They opted out of the rule of Westminster and into their own constitutional republic as the only way they could restore and entrench their rights!

    That episode effectively highlighted that civil liberties in the British system were not entrenched — indeed British tradition is that Parliament is sovereign and can rule as it pleases.
    The recent onslaught on civil liberties by Parliament is testament to the fact these liberties are not entrenched. The situation was not so bad when Parliament checked the executive (and people would invoke Magna Carta or the BoR for such purposes), but now Parliament’s been taken over by the executive, and the voters don’t seem to care enough to have stopped it yet. It probably wouldn’t have happened or wouldn’t have got anywhere near as far if Britain’d adopted a US-style constitution, but Britain never did that.

    By the way, California has a ban on smoking in public places and did so as far back as 1998. Ireland has since adopted such a ban as has Scotland, and soon English legislation to follow suit comes into force.

    It seems to me that under your way of thinking about the MC, the Californian legislation now applies to Ireland and Scotland and is soon to do so in England. Yet there are 4 separate pieces of legislation that were required to achieve this state of affairs in 4 different jurisdictions.

    Comment by James Hammerton — 7 March, 2007 @ 10:37 pm | Edit This


  12. i’m inclined to post this discussion to upm for further input…do i have ‘your’ permission

    OK. If you include scot.politics and uk.legal, you could perhaps ask for clarification on the legal status of Magna Carta and 1689 BoR in Scotland, and whether there is any precedent or basis for them being regarded as applying in Scotland without this being made explicit in either the Act of Union or any subsequent Act of Parliament.

    I’ve not read every Act of Parliament produced since Union so it’s possible I’m wrong about the status of MC and the BoR, but AFAICT the Act of Union did not subject Scotland to the authority of laws in force in England prior to Union in general or to MC or BoR in particular, merely to the legislation passed subsequently by Westminster, to authority of the Crown and to the Articles of Union themselves. That’s not to say that ideas introduced in one jurisdiction didn’t get incorporated into the other from time to time, but Westminster would have to do such things explicitly via legislation, as I understand it.

    Comment by James Hammerton — 7 March, 2007 @ 10:47 pm | Edit This


  13. The Magna Carta and BoR are not (and never have been) part of Scots Law for 2 reasons : -a) they were passed before Scotland entered the Union with England; and b) under the Union of 1707 Scotland was guaranteed its own separate legal system, Church and education system. Much of what is contained in the MC and BoR are part of Scots Law under legislation enacted by the Westminster Parliament to apply only in Scotland. Drawing comparisons with the former Colonies isn’t relevant as Scotland already had its own Parliament before the Union.

    Comment by David Elder — 12 November, 2010 @ 4:08 pm | Edit This


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