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The Paradox of the Magna Carta in Canada

How is an 800-year-old piece of sheepskin sealed with beeswax and resin, forced upon a King by 150 French speaking conservative elites relevant in Canada today? The answer is, it isn’t, or at least, it shouldn’t be. Yet, Canada can’t escape the legacy of the Magna Carta. In the 17th century, the Magna Carta became symbolic of something it was never meant to be. The feudal era charter was transformed into a symbol of limited government and the rule of law. Today, the symbolic nature of the document has garnered glowing statements from some of our most prominent politicians.[1] It continues to influence our legislatures and courts.[2] But before we determine what relevance the Magna Carta has in Canada, we must understand what it is, and what it has come to symbolize.

The text of the Magna Carta was not revolutionary. It was rather mundane. It has been described as “reactionary” and restoring “fundamental feudal law”.[3] The life of the original Magna Carta was brief. Ten week after its inception, Pope Innocent III denounced it as “not only shameful and base but illegal and unjust” and declared it to be null and void.[4] Although, King John’s heir, Henry III, reissued the Magna Carta, the charter faded into obscurity in the centuries that followed.[5] Fourteenth and fifteenth century writers like Chaucer, Gower and Lydgate never made any mention of the Magna Carta.[6] The charter is also noticeably absent from Shakespeare’s King John.

Readers of the Magna Carta will find most of its clauses protected the established feudal system. The only articles that have any relevance in modern day Canada are 39 and 40. Together, these clauses have commonly been held to establishing the rule of law, jury trials, and habeas corpus.[7] These are misconceptions. [8] The transformation of the Magna Carta only took place in the 17th century. This was accomplished largely due to the efforts of one man, Sir Edward Coke. Coke was dismissed as Chief Justice for objecting to the King’s interference in the operation of the courts. In opposition to the King, Coke was able to transform the Great Charter from a feudal handbook to a constitutional document through, what some have described as, “ahistorical Whiggism”.[9]

The most common misconception is the Magna Carta established the rule of law. The Magna Carta did reassert the principle that the King is subject to the law, but this was not a novel idea invented by the barons at Runnymede. Instead, it was a common idea that existed well before the Magna Carta.[10] For example, at his coronation in 1100, Henry I swore an oath to observe the laws and customs of England.[11] A generation before the Magna Carta, John of Salisbury wrote in the Policraticus that a king ruled by law which the king could not change at will.[12] While the Magna Carta is not the origin of the rule of law, it did proclaim what law the King should be subjected to. Even in a critique of the revisionist Whig history, Charles McIllwain conceded that “we may still hold as our fathers did that the law of the land is there (in the Magna Carta)”.[13]

The next misconception is that trial by jury originated out of Article 39 of the Magna Carta. This interpretation was not even accepted by Coke.[14] Jury trials existed well before the Magna Carta. [15] The development of criminal trials by jury developed gradually in the 13th century. These developments are not connected to the Magna Carta.[16]

The writ of habeas corpus also developed independently of the Magna Carta. The first appearance of habeas corpus was in 1199, predating the Magna Carta by 16 years.[17] In the 16th century, habeas corpus began to develop for use in criminal matters.[18] It was only through Coke’s writings that the writ’s development was intertwined with the Magna Carta.[19] Coke used a capacious reading of legem terrae to advance habeas corpus as the preferred enforcement mechanism of the Magna Carta.[20]

Coke, and other revolutionaries, used the Magna Carta as a political tool to justify their ideas. Coke’s interpretations have, inevitably, drawn the ire of many modern historians. However, Coke’s advancement of the myth of the Magna Carta may have provided the world a great benefit. Coke’s myth informed the American Founding Fathers and the American Bill of Rights. The myth has helped advance the rule of law around the world. It has influenced world leaders such as Nelson Mandela.[21] Through Coke’s 17th century efforts, the Magna Carta has come to symbolize the idea that “be ye never so high, the law is always above you”.[22]

The question still remains, what impact does the Magna Carta have in Canada? While most of the provisions concerning feudal law have no relevance, the symbol of the Magna Carta still carries great weight in our country. The Magna Carta may not a binding legal document but it continues to inform our politicians and courts.[23] It had a profound impact on Prime Minister Diefenbaker and the development of the Canadian Bill of Rights. Diefenbaker described the the Magna Carta as planting seeds of freedom “in the far corners of the earth”.[24] The Supreme Court recently provided a link between the Magna Carta and modern Canadian law by stating, “The notion that justice delayed is justice denied reaches back to the mists of time (back to the Magna Carta)”.[25] Our Charter of Rights and Freedoms provides for the right of habeas corpus, freedom from arbitrary detention or imprisonment, and the rule of law. All of these rights can be be attributed to what the Magna Carta has come to symbolize.

If we are to truly appreciate the relevance of the Magna Carta, it is important to understand what it is and how the myth of the Magna Carta came about. It would be intellectually indolent to blindly accept the politically convenient myth of the Magna Carta. But it would be equally unfair to deny the significance the Magna Carta has played in shaping the modern world’s view of justice, limited government and the rule of law. After 800 years of history, the Magna Carta itself has become a paradox. The text, properly interpreted, reasserts feudal principles. As a symbol, it is a beacon of limited government and the rule of law.

Today in Canada, the rule of law has become such a fellow that it has no sovereign.[26] As Canadians head to the election polls this autumn, we are secure in the knowledge that neither the Prime Minister nor the Queen are above the law. If the Magna Carta continues to symbolize the security we have in the rule of law, then it is well worthy of relevance in 2015.

[1] Office of the Speaker of the House of Commons, News Release, “Speaker Scheer to Moderate Panel Discussion on Magna Carta”, (12 February 2015), online: <http://www.parl.gc.ca/About/House/Speaker/advisory-magnacarta-e.html>; Bob Rae (15 June 2015 at 5:07am), online: <https://twitter.com/bobrae48/status/610403229579538432>; Jason Kenny, (15 June 2015 at 12:53pm), online: <https://twitter.com/jkenney/status/610520642627219456 >.

[2] Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 at 146, [2000] 10 WWR 567 [Blencoe].

[3] William McKechnie, Magna Carta: A Commentary on the Great Charter of King John (Glasgow: James Maclehose and Sons. 1914) at p 449; Max Radin, “The Myth of Magna Carta” (Sep. 1947) 60:7 Harv L Revat p 1071 [Myths].

[4] British Library, “The Papal Bull Annulling the Magna Carta”, online: <http://www.bl.uk/collection-items/the-papal-bull-annulling-magna-carta>.

[5] For example, the Magna Carta was not referenced in Sir Thomas Smith’s book The Commonwealth of England.

[6] Myths, supra note 2 at p 1081.

[7] “Magna Carta: A powerful symbol of justice triumphing over tyranny”, The Globe and Mail (02 February 2015), online: < http://www.theglobeandmail.com/news/world/the-magna-carta-a-powerful-symbol-of-justice-triumphing-over-tyranny/article22754478/>.

[8] Myths, supra note 2; CH McIlwain, “Due Process of Law in Magna Carta” (Jan. 1914) 60:7 Colum L Rev [Due Process]; Lord Sumption, “Magna Carta Then and Now” delivered at the British Library, London, England, 9 March 2015, https://www.supremecourt.uk/docs/speech-150309.pdf [Sumption].

[9] Sumption, supra note 8.

[10] Ibid.

[11] Stephen Langton even produced Henry I’s charter during the negotiations for Magna Carta.

[12] Sumption, supra note 8.

[13] Due Process supra note 8 at p 31

[14] Ibid at p 31.

[15] Sumption, supra note 8.

[16] Ibid.

[17] Justin Wert, “With a Little Help from a Friend: Habeas Corpus and The Magna Carta after Runnymede” (July 2010) 43:3, Political Science and Politics 475 at 475 [Habeas Corpus].

[18] Daniel Meader, “Habeas Corpus and Magna Carta: Dualism of Power and Liberty” (1966) Charlottesville: University of Virginia Press.

[19] Sumption, supra note 8.

[20] Habeas Corpus, supra note 16 at 476.

[21] British Library, “Magna Carta in the 20th Century”, online: < http://www.bl.uk/magna-carta/articles/magna-carta-in-the-20th-century>.

[22] 17th century English historian Thomas Fuller famous quote on the rule of law.

[23] R v Jebbett, 2003 BCCA 69 at para 4.

[24] John Diefenbaker, Those Things We Treasure: A Selection of Speeches on Freedom and in Defence of Our Parliamentary Heritage (Toronto: MacMillan of Canada. 1972).

[25] Blencoe, supra note 2

[26] A paraphrasing of Sir Edward Coke’s famous statement “The Magna Carta is such a fellow that is has no sovereign”.

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