Magna Carta for sale

<em>‘Does Magna Carta mean nothing to you? Did she die in vain?’ Tony Hancock</em> - Ted Vallance ex

On 18 December Sotheby’s New York will auction off the last copy of Magna Carta still in private hands.

The seller is Ross Perot, American billionaire and former presidential candidate. Sotheby’s anticipate the Great Charter will fetch somewhere between $20-30 million dollars, which is still a lot of money, even with the dollar currently weaker than an American cup of tea. Avaricious old King John must be spinning in his Worcester Cathedral grave.

When news of the sale of the Charter first broke in September of this year, the media on both sides of the Atlantic were unanimous in declaring the importance of the document. The BBC described Magna Carta as enshrining ‘human rights in English law’.

Peter Oborne, in The Daily Mail spoke of its ‘protections’ as ‘priceless’. The New York Times stated that the Charter ‘laid the foundation for fundamental principles of English law’. David Redden, the vice-chairman of Sotheby’s, anxious not to undersell the document, called Magna Carta "the first rung on the ladder to freedom. This document symbolises mankind’s eternal quest for freedom; it is a talisman of liberty."

The seventeen surviving manuscript versions of the Charter are now venerated like holy relics. Until the auction, the Perot Charter had resided at the National Archives, Washington, where it sat in a glass display box embedded in a marble plinth, sheltered under a vast wooden cupola. (The news of the auction came as something of a surprise to the archives, and they are now left with the possibility of having to find something else to put in that big glass case).

In the Sir John Ritblat Gallery, which houses the British Library’s ‘treasures’, including the Gutenberg Bible, a first folio edition of Shakespeare, and the lyrics to ‘I Wanna Hold Your Hand’ by the Beatles, the library’s two copies of Magna Carta sit in their own private room, the doorway framed in regal purple (implicit message: John Lennon and Paul McCartney are important, but not as important as Magna Carta).

Not to be outdone, the Bodleian Library, Oxford, is opening an exhibition on 11 December, displaying its four manuscripts of the Charter.

Fetishised, idolised, Magna Carta is treated more as a national symbol than as a historic text. The anniversary of ‘the signing of Magna Carta’, as the BBC egregiously described it (as every schoolboy used to know, the Charter was sealed, not signed) surprisingly emerged as the most popular choice in a poll for a new ‘British Day’, beating VE Day and D-Day. It has even been nominated as one of the ‘icons of England’ (alongside a pint of beer, the Archers and Dr. Who’s Tardis).

News of the sale of the Magna Carta roused some correspondents to the Times to a fever of indignant, nationalistic fury. According to J. Roberts of Manchester: "The fact that one of the greatest documents of democracy ever written is to be sold at a crass and vulgar auction by some crass and vulgar Americans says everything you need to know about American 'culture' and what their brand of ugly capitalism means for the world."

J. Roberts overlooked the fact that the Charter was sold to its current American owners by members of the English aristocracy in the mid-1980s (confirming Magna Carta’s original intent: to increase the wealth and power of the peerage).

It might also be worth noting that the money will be spent, according to Perot’s charitable foundation, on "medical research, ... improving public education and ... assisting wounded soldiers and their families."

In any case, Americans, crass or otherwise, have just as much right to feel attached to the Magna Carta as the English. The Charter is a document whose influence has been felt the world over. Elements from the Great Charter are incorporated into the 5th Amendment to the Constitution of the United States and cap. 29 of the 1225 Charter is also represented in the Indian Constitution of 1950 article 21, in the 1960 Canadian Bill of Rights, Pakistan Constitution of 1956 and the Malayan Constitution of 1963.

Indeed, as elements of Magna Carta have been incorporated into the US constitution, the Charter unquestionably has greater legal power in North America than it does in the UK.

The inspeximus of 1297 (which the Perot Charter is an engrossment of) is the version of the charter which is still part of British law. There is not much of this medieval document that retains any legal force. Of the four clauses that remain in effect, three have little real importance (one deals with the privileges of the City of London, one is statement concerning the independence of the Church of England -regularly ignored- and another is merely a general saving clause).

It is only chapter 29 of the Charter that retains any significance. This states: "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 otherwise destroyed; nor will we 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."

This chapter of the Charter has been revered from thirteenth century to the present day. Edmund Burke described it as being ‘engraven on the hearts of Englishmen’. But what does c. 29 actually guarantee? The answer is, historically, not very much.

This chapter has been overridden by British Governments on a number of occasions, namely the suspensions of Habeas Corpus during the 18th and 19th century (largely, it should be noted, to suppress public agitation for democratic rights) and the Defence of the Realm Acts imposed during the two world wars. In legal cases where there has appeared to have been a clash between the actions of government ministers and the Charter, British judges have nearly always sided with the minister, as in the case of Rex. vs Halliday (1917) and Liversidge vs. Anderson (1942).

More recent attempts to invoke the Charter to defend the liberties of British citizens have also proved a failure. The Chagos islanders hoped that ch. 29 might be used to challenge their forced eviction from Diego Garcia to make way for a US airbase on the grounds that this constituted unlawful exile.

The judges agreed that Charter liberties did extend to the BIOC (the colonial entity which includes Diego Garcia) and as individuals with dual British and Mauritian citizenship the Chagos Islanders were protected by its terms.

However, all ch. 29 guaranteed was that the process of law set down in a particular territory would be followed accordingly. The 1971 Immigration Ordinance which covered the BIOC effectively banned anyone other than US military personnel from living on the island. This was ‘the law of the land’ in Diego Garcia and so, the judges concluded, the Chagos Islanders had been lawfully ejected from their homeland. Despite subsequent legal victories in 2000 and 2007, which did not rely on arguments based on Magna Carta, repeated legal appeals from the British Government mean that the Chagos Islanders still cannot return to Diego Garcia.

The problem then is not, as writers on the right, such as Peter Oborne, have suggested, that Magna Carta liberties are under ‘sustained and ruthless attack’ by the Labour government. The problem is that Magna Carta, whilst it may be seen as a symbol of freedom and democracy the world over, in a British legal context guarantees sweet FA.

In fact, it is this ‘ancient constitution’, so revered by conservatives, which essentially hobbles those few modern concessions to civil rights, such as the Human Rights Act of 1998, that have appeared on the statute books.

As Lord Hoffman explained in 1999: "Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal."

Hoffman’s argument was essentially that British governments would avoid committing human rights abuses because it would be too politically damaging in a mass democracy. These political costs have not been deemed so high by Blair and Brown that they have rejected the use of legal instruments in the fight against terror, (control orders, 90-day detention limits), which seem in conflict with the HRA.

Magna Carta remains only sentimentally, rather than practically, a part of our constitution. What goes on sale at Sotheby’s, New York, this Tuesday is a very rare thirteenth-century royal charter, not the quintessence of liberty and democracy.

As the Leveller William Walwyn argued 352 years ago, Britain’s medieval constitution requires complete reformation, not piecemeal renovation.

"When so choice a People ... shall insist upon such inferior things, neglecting greater matters, and be so unskilful in the nature of common and just freedom as to call bondage libertie, and the grants of Conquerors their Birthrights, no marvaile such a people make so little use of the greatest advantages; and when they might have made a newer and better Charter, have falne to patching the old".

Ted Vallance is lecturer in early modern history at the University of Liverpool. He is the author of The Glorious Revolution: 1688 and Britain's Fight for Liberty (Little, Brown and Co, 2006) and is currently writing a history of English radicalism from Magna Carta to the present day