A confederacy of dunces: Magna Carta in History 8 textbooks

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 800^th 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".

The only book to actually attempt to outline the content of chapters of the Charter 1215 is the Pearson History that summarizes six of the Chapters (it calls them clauses), but oddly omits the very important Chapter 39.

Second, the original document was not called Magna Carta at all. The first use of the name only appeared in 1218. The spelling for many centuries was Magna Charta, something only officially changed in 1946 to Magna Carta.

Third, although most of the Charter has disappeared from the statute book, especially after 1863 when much was repealed by the British Parliament, Magna Carta was used in the centuries after 1215 as an idea to argue for various rights. This is not the same as claiming that the 1215 charter was the origin of modern ideas; after all the barons in the meadow at Runnymede did not propose ideas such as parliamentary democracy, the universal franchise, the secret ballot or a bill of rights. It is rather a claim that later generations used the Charter to bolster arguments in favor of new ideas.

Magna Cartawas frequently invoked in the nineteenth century in Australia as representing the rights of Englishmen and deployed in favor of greater colonial autonomy, especially in the 1830s and 1840s when arguments were made in favor of responsible government. This is easily researched thanks to the wonderful digital newspaper collection available via the Trove portal at the National Library of Australia. A quick search reveals that there were 10,500 hits for the term Magna Carta (or Charta) between 1824 and 1989.

Now while it is important that Magna Carta is included in the history curriculum that only makes sense if students are actually given accurate information about it. The current textbooks, presumably used in Australian schools, are full of rubbish and they also leave out important information. This raises questions about the competence of the authors of these books and the judgment of the publishers in allowing this information to appear. Whether the material on Magna Carta in these textbooks is actually covered in the class room and whether Magna Carta is the subject of assessment is another question that only history teachers themselves can answer.

As the students who take History 8 are young it is important that accuracy is inculcated not as a virtue but as a duty. Given the availability of the internet it would be easy, for example, to test the proposition that the Charter was published by asking students to Google "Guttenberg", Caxton", and "printing" to ascertain whether printing existed in 1215 or during the thirteenth century at all. Given the resources available from reliable sites on the internet many historical subjects could easily be researched in class. After all, modern students are computer literate so why not use this as a tool for guided discovery? One obvious thing to do is to actually read a copy of the Charter online.

In the nineteenth and early twentieth centuries students studied constitutional history usually by examining Magna Carta, the Bill of Rights, Habeas Corpus, and the Act of Settlement amongst the main constitutional landmarks. On the occasion of the 720^th anniversary of Magna Carta in 1935, for example, special lessons were given in West Australian state schools on the significance of the charter. A very useful article entitled "Magna Charta" appeared in the local press at the same time that debunked many of the commonly held myths about 1215. Whether what was taught during that era was properly learned is another matter. According to a list of schoolboy howlers from the examination papers, published in 1905, one student actually wrote: "The chief clause of Magna Charta was that no free man should be put to death or imprisoned without his own consent".

Avoiding Educational Nonsense

Since the textbooks are misleading where, to ask Jacques Barzun's question, does such educational nonsense come from? Barzun thought that it derived from education fads that aimed not at education or the removal of ignorance but from the notion that schools exist for wider social purposes. These he identified as teaching about "life","problems" and "attitudes". Evidence of this nonsense is everywhere. The website of the Victorian Department of Education states that it exists "to support Victorians to build prosperous, socially engaged, happy and healthy lives". Really? Why not end poverty and institute world peace while they are at it.

We might say that a school is meant to be a place of learning, not a therapeutic community run by social workers to make students feel good about themselves, though of course teachers and schools should inspire and not be the "enemies of promise". Schools, if they are any good, will impart many things besides a knowledge of the main branches of learning, but these other qualities emerge indirectly as a by-product of learning the content of a recognized subject. Barzun thought that "The all-important thing is mastery of a subject matter" by the teacher and that this was only possible if they had learned the subject as a major in college (or in our case in a University).

All students should through observation and example learn from their teachers the virtues of patience, concentration, attention to detail, the ability to frame a question about any sentence they read, an appreciation of language and, in the case of history, a realization that the past was often different. People who lived in the past, especially the distant past, had different values, a different outlook, as well as different institutions from those that exist in the present.

Students should also be encouraged to realize that the historical record is the only evidence we have of the past, that it is often incomplete, and that, in consequence, some questions cannot be answered. In the case of the transactions at Runnymede there is no verbatim record of what was said, merely the resulting document. Notwithstanding these limitations history is based on evidence not wild speculation for, as Eric Hobsbawm has pointed out, historians investigate what is real and they cannot invent their facts.They must, as he put it, respect "the supremacy of the evidence".

The discipline also should guard against the sin of anachronism (sometimes called presentism or hindsight) by reading the past as if it were the present or reading into the past present attitudes that could not have existed in the past. It is no good, as a colleague once noted, criticizing Julius Caesar for not advocating votes for women. The men, and there were only men, in the meadow at Runnymede in June 1215, did not know what came next, though we do. Moreover it is wrong to assume that because later writers, especially that great myth maker Sir Edward Coke, sourced seventeenth century ideas in the Charter that they were right. Coke was a lawyer not a professional historian and sometimes good law can be very bad history.

The problem of origins involves too often attributing modern ideas to persons in other ages. Take Chapter 1 of Magna Carta that provides that the English church shall be free. This meant that the church would be free of Papal interference in the making of appointments, not a statement about individual freedom of conscience. The mistake lies in supposing that because a word we think we recognize was used in the past that it must have been used in the same sense in which the term is now used.

I do not wish to suggest that the textbooks are useless or without merit. They are attractively produced, full of maps, pictures, and diagrams, all in full color. This, for the thirteen year old in the twenty first century, is a huge advance over the text only books of my youth. The approach to history is also different in two marked ways. First, history covers non-European history. In the case of History 8 this includes the Ottomans, the Khmer, Japan and the Pacific Island voyages of the Polynesians. Second, there is a strong emphasis on the social history to give students an idea of what life was like in the societies covered. But this necessarily crowds out legal, political and constitutional history. Since no curriculum on any subject can cover everything about everything, the question is on what basis is a selection to be made? This will always be a controversial matter since selection is inevitable. And as content is included other content must be omitted.

Earlier generations took the view that history should impart a knowledge or, at least, a basic awareness of the legal/constitutional and political history of the country. The current approach substantially neglects these matters. Why should not Australians know about where their major institutions came from, how they emerged and the changes that were made to them, both in England and in Australia? Our dominant political and legal arrangements are largely English, save for Scandinavian innovations such as the Ombudsman and American influences on our Constitution. To neglect this is to send forth generations from our schools with no grasp of the institutions that are part of the present. I have had the misfortune to teach students who were unsure of the number of states in Australia or even when the Middle Ages occurred. One slick operator when asked about this offered that they "were a while back".

The rule of law, parliamentary government, responsible government (never mind the oxymoron), the separation of powers, judicial independence, the protection of rights by the common law, the universal franchise, and voting by the secret ballot are all English ideas. Students should learn that the first law in the British Empire to mandate voting by ballot was passed in Tasmania in January 1856 and that when Britain adopted voting by ballot in 1872 the British parliament modeled its law on that of South Australia with its cross in the square voting method created in Adelaide in 1858. Australia also led the way in not imposing a religious test for admission to university with the Sydney University Act 1850, over twenty one years before similar arrangements in England. Votes for women in South Australia in 1894 preceded the vote for women in Britain in 1918. These examples of Australian innovations made to inherited institutional arrangements indicate that any account must recognize and be faithful to the historical record. It would not be a simple history of how everything was created in Britain and that we simply adopted British institutions unchanged. After all Australia has a written constitution while Britain does not; we have judicial review of legislation they do not; we have a federal system they do not; we have an elected upper house they do not.

In short, any proper history would be an account of the obsolete, of survivals, and of changes made through transplantation. It would not be simply a history of triumphs or of failures, but of both. It would depict human achievements and follies; it would show humans at their best and at their worst. It would exhibit the complexity of human history as well as the pity, the fallibility and the magnificence of the human condition. Above all the study of history should be accompanied by a skeptical cast of mind both towards the evidence and towards comprehensive explanations.