Magna Carta and its progeny
23 November 2014
Magna Carta Uncovered, Hart Publishing, October 2014 – details here
Two old friends, Lord Judge (former Lord Chief Justice) and Anthony Arlidge QC have written a compelling and scholarly account of the 1215 political settlement known as the Magna Carta. This instrument has become something of a missile in the dust-up over the European Convention versus “rights brought home”.
The authors have taken on the task of tracing the way in which the Magna Carta has played a part in political challenges since its inception, critically in 17th century clashes between King and Parliament (think the Five Knights and Ship Money cases and the 1689 Bill of Rights). And the Charter then formed the background for the US Bill of Rights and many constitutional settlements since.
Magna Carta (strictly the first Magna Carta, as others followed in 1216, 1217 and 1225, to similar effect) was “granted” by King John in June 1215. Initial negotiations about the monarch’s relationship with the Church concluded on 23 November 1214 (800 years today) within the Temple in London – our authors are past and current Treasurers of the Middle Temple. The “grant” was not really that. John had been forced to make peace with his rebel barons, and the liberties forced out of the king were unwillingly conferred.
We know or think we know what Magna Carta says. But this book strips off some of the varnish which later thinkers have imposed upon it.
The first impression on reading it (conveniently translated from the Latin in an appendix) is that the significant provisions are buried in lots of stuff about over-taxation of inheritances, and property rights generally. We are told that widows are not to be forced to remarry, though if they do they need to ask the king’s or their lord’s consent. All fish-weirs are to be removed from the Thames and elsewhere. No-one shall be forced to build bridges across rivers. There is also some sort of recognition of devolution. The Welsh will be tried by the Welsh, the English by the English, and those in the middle (the March) by the judgment of their peers. Alien knights and crossbowmen will be sent home. All forests which have been afforested in John’s reign shall be deforested – that does not quite mean what it says to us, as “forest” then applied to land taken over by the king, whether with trees on it or arable land over which the king fancied hunting.
And then you begin to notice provisions which have guided English-speaking law. In No free man [NB you had to be free, and many were not in 1215] shall be taken or imprisoned or disseised or outlawed or exiled or in any way ruined, nor will the King go or send against him
except by the lawful judgement of his peers or by the law of the land.
Right to trial by jury then? Well no. There were no such things as juries then, and as our authors point, there is a big scholarly debate about whether the “or” is to be read literally – was the law of the land good enough, in which case you don’t need those equals trying you?
In more simple but ringing terms, clause 40 states
To no one will we sell, to no one will we deny or delay right or justice
subject of a pre-Article 6 unsuccessful attempt by one author (Arlidge) to persuade the other (Judge) to stay a delayed prosecution of a police officer: AG’s ref no.1 of 1990  95 Cr App R 296.
But in many senses the big provision (clause 61) was that which enabled the rebel barons to enforce the provisions of the Charter. For the first time, there was the beginnings of a continuing albeit enforced dialogue between barons and the king. Talk of Parliament is premature (see Chapter 16), but the power relationship between king and governed was starting to define itself. Taxation should not simply by by uncontrolled diktat of the king. Thus the germ of the rule of law – which still irritates governments when they feel that they know best. Witness the current worrying away by government at the rights of others to challenge it.
Magna Carta seems to have operated more as a statement of power than as a legal text deciding cases this way or that. In wry reflections on its status in the 15th and 16th centuries, the authors comment that it would have been an exaggeration to describe any Tudor monarch as a democrat, and
After the publication of The Prince in 1519, Machiavelli would always have trumped Magna Carta.
But it really came into its own in the 17th century, when a series of kings, James I, Charles I and James II, asserted the divine right of kings, and were challenged in the courts and in Parliament. James I did not start well; on his way to London after the death of Elizabeth I, he ordered the execution of a thief, without hearing or trial. Not long after, we have the Petition of Grievances by the Commons put to James I, including the “dear and precious freedom”
to be guided and governed by the certain rule of law which giveth to both the head and members that which of right belongeth to them and not by some uncertain or arbitrary form of government
Magna Carta had become the banner carried by those concerned by any extension of the royal prerogative – it was not an entombed relic:
in modern language, it was a living instrument.
Coke (Norfolk man, born in the 1560s) was part of the reinvention or reinvigoration of the constitutional principles derived from Magna Carta. He and Selden ended up in the Tower for standing up for their political principles against James I. And see chapters 20 and 21 for the great showdowns with Charles I and the royalists.
1649 saw the death of a “tyrant” (Charles I) and the arrival of another, albeit not burdened with kingship. Oliver Cromwell was equally unimpressed by our 13th century living instrument:
your magna farta [sic] cannot control actions taken for the safety of the Commonwealth
Public safety, the refrain which is on the lips of everyone justifying acts which impinge on our liberties.
The last main chapter (25) concerns the transplanting of the UK Bill of Rights (1689, a response to the expulsion of James II, when the Dutch invaded and restored a Protestant monarchy) into the US’s new constitution (where it arrived 100 years later). Magna Carta, and Coke’s role in enforcing it against kings, suited the US mood as it worked out how to govern itself after facing down the English King seeking “taxation without representation”. And the Fifth Amendment, containing rules against double jeopardy, self-incrimination, confiscation of property without compensation, and the requirement for due process, underpins great swathes of the law now embodied in the European Convention.
A good deal of high-blown stuff is talked about Magna Carta, and it is good to be reminded of what it said, and as importantly, the context in which it was said. Anyone fancying pontificating about it for political ends would do well to read this book – as would the many of us who would quite like to know more about why it has formed such an important part of the rhetoric of England.
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