Section 3 of the New Zealand Imperial Laws Application Act 1988 provides that “The Imperial enactments listed in Schedule 1 are hereby declared to be part of the laws of New Zealand.” Casting the eye over Schedule 1, one sees a reference to (1297) 25 Edw 1 (Magna Carta) c.29
Chapter 29 – although it is more like a clause – reads
Imprisonment, etc contrary to law. Administration of justice
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 word “condemn” in the context of the clause means “deal with”. That is the only part of Magna Carta that survives as part of the law of New Zealand, and perhaps it is the most recognised one dealing as it does with the concept of a judgment of his peers – which later came to be interpreted as trial by jury – or by the law of the land.
But Magna Carta was not, as it has been argued over the centuries, the first Charter of English Liberty. Far from it. A careful reading of Magna Carta reveals that it deals with a number of issues, primarily about land and entitlements, not of ordinary Englishmen (if there was such a person in 1215) but of the Church and the nobility. Clause 1 confirms the liberties and entitlements of the Church. In the 1297 version clause 1 also states: ” We furthermore grant and give to all the freemen of our realm for ourselves and our heirs in perpetuity the liberties written below to have and to hold to them and their heirs from us and our heirs in perpetuity.” The use of the word “freemen” is important. Serfs were not included. The Charter was not of universal application.
It seems no accident that the enactment of Magna Carta in the reign of Edward I had the title ” The Great Charter of the Liberties of England, and of the Liberties of the Forest”. But despite the lofty title, reading on the subject matter deals with the rights of earls and barons and succession, and the powers of the Crown and its officers to undertake certain actions. Looking through the document one gets the impression that it was designed to deal with a number of complaints about the way that the country was being run by King John. For example it seems that there may have been some inaccuracies in the standard weights and measures that were being used (Clause 25). The sittings of the county court were prescribed (Clause 35). These and other clauses were designed to place restrictions on what were perceived as the arbitrary use of Royal power contrary to accepted custom and the expectations of the land-owning nobility.
1215 saw an open baron’s rebellion against the King, which probably would have proceeded through to John’s deposition had there been an obvious adult successor – but there was not. John’s nephew, Arthur of Brittany, the son of his brother Geoffrey, had died in mysterious circumstances. Louis of France as the husband of Henry II’s granddaughter, had a tenuous claim, and although the English had been ruled by the Angevin Plantagenet family at war, the country had been at war with the French for thirty years. So the barons based their revolt on John’s oppressive government and ongoing popular dissatisfaction with the Crown particularly flowing from a lengthy dispute that the King had with the Church which resulted in the country being placed under Papal Interdict.
In January 1215, the barons made an oath that they would “stand fast for the liberty of the church and the realm”, and they demanded that King John confirm the Charter of Liberties – a Charter issued by Henry I in 1100 in which certain limitations upon Royal power were accepted.
During negotiations between January and June 1215, a document was produced, which historians have termed ‘The Unknown Charter of Liberties’, seven of the articles of which would later appear in the ‘Articles of the Barons’ and the Runnymede Charter. In May, King John offered to submit issues to a committee of arbitration with Pope Innocent III as the supreme arbiter, but the barons continued in their defiance. With the support of Prince Louis the French Heir and of King Alexander II of the Scots, they entered London in force on 10 June 1215, with the city showing its sympathy with their cause by opening its gates to them. They, and many of the moderates not in overt rebellion, forced King John to agree to a document later known as the ‘Articles of the Barons’, to which his Great Seal was attached in the meadow at Runnymede on 15 June 1215. In return, the barons renewed their oaths of fealty to King John on 19 June 1215, which is when the document Magna Carta was created.
One of the magnates who was instrumental in bringing about the settlement – for that was what Magna Carta really was – was William Marshal, Earl of Pembroke. Marshal was a paragon of chivalry, a faithful knight and undeafeated champion in the lists. He served three Plantagenet Kings – Henry II, Richard I and John – and was Regent following John’s death and before Henry III could take the throne. Marshal’s tomb is in the Temple Chapel in London, in the grounds of the Inner Temple Inn of Court, and it is probably significant that many of the negotiations leading up the Magna Carta took place in this very location.
An excellent overview of Magna Carta and its history, and the part that Marshal played has been written by the Lord Chief Justice of England and Wales, Lord Judge. His article addresses some of the misconceptions surrounding Magna Carta, the events leading up to 15 June and what happened subsequently, because John was released from his promises by the Pope, and disharmony in the kingdom continued. The article follows:
For a reassessment of the reign of John there is a recent article in History Today (February 2012) entitled “Good King John” by Graham E. Seel which can be found here
The advent of the printing press, the first information technology, saw Magna Carta in print as law printers and compilers took advantage of the new information technology to record and preserve legal information beyond manuscript texts and lawyers’ notebooks. Robert Redman printed The boke of Magna Carta with divers other statutes in 1534. Richard Tottell, a leading law printer in the sixteenth century and holder of the patent giving him the monopoly to print common law books, printed Magna Charta cum statuis quae antiqua vocantur in 1556. Magna Carta featured in William Rastell’s A Collection of all the statutes from the beginning of Magna Carta until the yere of our Lord 1557, a book printed by Totell in 1559 and which was subsequently reprinted and updated.
Ferdinando Pulton (1536 – 1618), a compiler of statutes, published five works including A kalendar, or table, comprehending the effect of all the statutes that have been made an put into print, beginning with Magna Charta, enacted in anno 9. H3. Although he was a Catholic he was admitted to the Bar in 1609 and was a supporter of Elizabeth I and James I. His interest in the strict execution of the criminal law allowed him to retain the critical support of James and Thomas Egerton, Baron Ellesmere, the lord chancellor. He wrote in his prefaces that the purpose of publishing the law was to educate the people in it. He believed that the criminal law must be firmly implemented and that knowledge of it would deter unlawful acts and his book De Pace Regnis is his recognised treatise on the “great and generall offences of the realme.”
Magna Carta was also the subject of Readings – oral lectures or expositions of statute law given at the Inns of Court – and one by Robert Brooke was printed in 1641
Magna Carta has been used for many and varied purposes. Edward Coke was a particular advocate of its use in the contest between the King, the Law and Parliament in the early Stuart period, and he refers to Magna Carta with reverence. As he proclaimed to Parliament in 1628, “I know that prerogative is part of the law….but sovereign power is no parliamentary word: in my opinion, it weakens Magna Carta … Magna Carta is such a fellow that he will have no sovereign”
When Charles I warned the Commons that he would veto any bill that did more than reconfirm Magna Carta, Coke took the opportunity to make new law out of the greatest medieval statute. The result was the Petition of Right, something more than a list of grievances, if less than an actual bill of rights. After a stand-off the king came to Westminster and assented to the petition, ‘soit droit fait comme est desiré’—words acceptable to show royal assent, as Coke told the Commons.
In Coke’s Second Part of the Institutes, he glosses the meaning of the Great Charter of 1215 and elaborated in considerable detail the foundation upon which “English liberties” rested. The Second Institutes was not published until 1642, some 8 years after his death, but in time to become part of the intellectual ammunition used by opponents of the Monarchy during the English civil war and revolution during the 1640s and 1650s. His commentary on C. 29 held that the clause was the “root” from which sprang many “branches” of English law regarding individual liberty.
Lord Judge makes reference to Kipling’s poem, The Reeds of Runnymede which mythologises Magna Carta. The entire poem follows.
What Say the Reeds at Runnymede
At Runnymede, at Runnymede,
What say the reeds at Runnymede?
The lissom reeds that give and take,
That bend so far, but never break,
They keep the sleepy Thames awake
With tales of John at Runnymede.
At Runnymede, at Runnymede,
Oh, hear the reeds at Runnymede:
‘You musn’t sell, delay, deny,
A freeman’s right or liberty.
It wakes the stubborn Englishry,
We saw ’em roused at Runnymede!
When through our ranks the Barons came,
With little thought of praise or blame,
But resolute to play the game,
They lumbered up to Runnymede;
And there they launched in solid line
The first attack on Right Divine,
The curt uncompromising “Sign!’
They settled John at Runnymede.
At Runnymede, at Runnymede,
Your rights were won at Runnymede!
No freeman shall be fined or bound,
Or dispossessed of freehold ground,
Except by lawful judgment found
And passed upon him by his peers.
Forget not, after all these years,
The Charter signed at Runnymede.’
And still when mob or Monarch lays
Too rude a hand on English ways,
The whisper wakes, the shudder plays,
Across the reeds at Runnymede.
And Thames, that knows the moods of kings,
And crowds and priests and suchlike things,
Rolls deep and dreadful as he brings
Their warning down from Runnymede!
Kipling had an idealised view of English liberties and justice. The mytholgising of Magna Carta perhaps tells us as much about how the Charter has developed within the context of the history of law and justice as anything else. We can complain that what Kipling has idealised is not, historically, what it was about. Rather Kipling tells us what Magna Carta has become. One of my fondest memories of law school was in 1966 when Lord Denning was in New Zealand for a Law Conference. He gave a lecture to us law students and covered Magna Carta, quoting the last verse in his beautiful soft Hampshire accent. It is a memory which has stayed.
Kipling’s poem Norman and Saxons expresses the importance of fair dealing with a conquered race, but his image of the Saxon embodies many of what could be described as “English virtues”and concepts of justice and how it may be achieved.
Norman and Saxon
“My son,” said the Norman Baron, “I am dying, and you will be heir
To all the broad acres in England that William gave me for share
When he conquered the Saxon at Hastings, and a nice little handful it is.
But before you go over to rule it I want you to understand this:–
“The Saxon is not like us Normans. His manners are not so polite.
But he never means anything serious till he talks about justice and right.
When he stands like an ox in the furrow – with his sullen set eyes on your own,
And grumbles, ‘This isn’t fair dealing,’ my son, leave the Saxon alone.
“You can horsewhip your Gascony archers, or torture your Picardy spears;
But don’t try that game on the Saxon; you’ll have the whole brood round your ears.
From the richest old Thane in the county to the poorest chained serf in the field,
They’ll be at you and on you like hornets, and, if you are wise, you will yield.
“But first you must master their language, their dialect, proverbs and songs.
Don’t trust any clerk to interpret when they come with the tale of their wrongs.
Let them know that you know what they’re saying; let them feel that you know what to say.
Yes, even when you want to go hunting, hear ’em out if it takes you all day.
They’ll drink every hour of the daylight and poach every hour of the dark.
It’s the sport not the rabbits they’re after (we’ve plenty of game in the park).
Don’t hang them or cut off their fingers. That’s wasteful as well as unkind,
For a hard-bitten, South-country poacher makes the best man- at-arms you can find.
“Appear with your wife and the children at their weddings and funerals and feasts.
Be polite but not friendly to Bishops; be good to all poor parish priests.
Say ‘we,’ ‘us’ and ‘ours’ when you’re talking, instead of ‘you fellows’ and ‘I.’
Don’t ride over seeds; keep your temper; and never you tell ’em a lie!”
From a “revisionist” point of view one wonders whether or not that poem was a coded message to the adminstrators of Empire. It was in fact written for C.R.L. Fletcher’s “A History of England” published in 1911 – a book which, incidentally, contained “The Reeds of Runnymede.”
So Magna Carta occupies various roles. The historian has a particular view of what it actually was but over the centuries it has been used and has developed in potency, especially in the early seventeenth century. Today it may be said to be a symbol of the importance of limiting unbridled power and of ensuring proper justice and fair dealing. The fact that the clause which emphasises the importance of the rule of law and legal process, and the importance of the obligation on the part of a ruler to ensure justice still remains as part of our law points to its continued significance and value in the twenty-first century
The Countrey Justice – 15 June 2012