With a Little Help from a Friend: Habeas Corpus and the Magna Carta after Runnymede

Abstract

At the beginning of the twentieth century, Charles McIlwain observed that the new histories of the Magna Carta were portraying the charter as a “document of reaction” that could only fulfill its purported greatness “when men [were] no longer able to understand its real meaning” (McIlwain 1914, 46). Characteristic of these early-twentieth-century writers was Edward Jenks, who, in his 1904 article “The Myth of Magna Carta,” came to the conclusion that the real beneficiaries of the document—the liber homo of Article 39—were not “the people” we traditionally imagine, but rather an “aristocratic class … who can no more be ranked amongst the people, than the country gentleman of to-day” (Jenks 1904, 269). Although Jenks's position is often criticized as extreme, it is nevertheless the case that virtually all of the Magna Carta's modern commentators recognize vast historical inaccuracies in the Whiggish accounts of the charter's development up until the late nineteenth century (Radin 1946; Reid 1993; Halliday 2010, 15–16). What these new revisionist histories suggested was that the Magna Carta's great provisions—due process and trial by jury—only became great when, forgetting or ignoring the charter's seemingly lackluster beginnings, generations subsequent to 1215 gave them new meaning.