January 2015 | Earn one hour of MCLE Credit in General
Celebrating the constitutional legacy of Magna Carta
In the summer of 1215, following three years of acute political crisis and intermittent protracted negotiations, King John was forced to meet with his rebel barons at Runnymede. It would result in his sealing what would later become known as the Great Charter of Liberties. In that symbolic act, an anointed absolute ruler would concede that his sovereign power was subject to constraint. However, within three months the charter was annulled by Pope Innocent III and declared invalid. Civil war between King John and his barons ensued and Prince Louis Capet of France was invited to invade England and claim the English Crown.
So why are we celebrating the 800th anniversary of a charter that failed disastrously as a peace treaty and was valid for only a few months? It was not an early written constitution or definitive statement of law. Issued under duress, it could never have been contractually binding. As John Selden would point out four centuries later there was no “remedy in the law,” no action or writ to prevent its violation. The answer to the question lies not in the 1215 charter itself but in the legacy it has created. Its enduring strength rests upon its vague and often ambiguous language, which has allowed it to be adapted to later statutory interpretations that went far beyond its original meaning.
Despite the political failure of 1215, the majority of the charter’s liberties survived and it was re-issued in 1216, 1217 and achieved its definitive form in 1225. It became the first English statute in 1297 and three of those chapters remain law today. It was, however, chapter 29, which although altered by subsequent legislation, would come to represent those principles interpreted as fundamental law – the sanctity of property rights, the right to a fair trial and no punishment outside the law. Today it continues to be cited throughout English speaking courts where personal liberty and its progeny of human rights are threatened:
“No free man shall be taken, imprisoned, or disseised of his freehold, or liberties or free customs, or outlawed, exiled or in any way destroyed, nor will we proceed against him, save by the lawful judgment of his peers or by the law of the land. We shall not sell, deny or delay to any man right or justice.”
It was in the 14th century, when parliament passed six statutes directed against the extraordinary jurisdiction of Edward III’s Council, that new definition would be given to the charter’s language. “Due process of law” was introduced into the phrase “law of the land” and the words “lawful judgement of peers” were interpreted to include trial by peers and thus echo trial by jury. The restriction to free men was also extended to all men “whatever their estate or condition.” It would take a further three centuries and the fear of Stuart absolutism for the lawyers of the early 17th century to reinvent the charter as a constitutional instrument against growing arbitrary power.
Until the debates leading up to the Petition of Right in 1628, it is important to recognize that nowhere in Magna Carta did the words habeas corpus appear. It was only when Sir Edward Coke and John Selden ingeniously blended the language of the charter and prerogative writ together, that habeas corpus became a writ of liberty. Alongside earlier developments of mandamus and certiorari, judicial review of government action was firmly established and the principles behind Magna Carta were finally given a substantive remedy.
Charles I’s assent to the Petition of Right was a fundamental affirmation of Magna Carta and the rule of law. In practice, however, its text was too weak to prevent infringement and Charles’ decision to rule without parliament for the next decade culminated in one of the greatest constitutional trials of the period, Rex v. Hampden 1637. Based upon the ostensible, yet false, claim that Ship Money was a service and not a tax, he brought his absolute prerogative into common law proceedings. A highly politicized judiciary became responsible for introducing a new tax by judicial review. The authority of Magna Carta would be central not only in relation to the question of consent to taxation, but in the judges’ conflicting interpretations of royal discretionary power and the extent to which the common law controlled the king’s prerogatives.
The king’s Attorney General, Sir John Bankes opened proceedings by rejecting any authority derived from King John’s Charter: “It was, in truth, an inforced act from a distressed king… it trencheth too much upon the prerogative.” Although he accepted its statutory authority, he maintained that all justice continued to flow from the monarch: “The general words of this act of parliament do no ways impeach the royal power, for this royal power is ‘lex terrae.” He would cite chapter 29 to show that lex terrae applied to all laws in general and therefore did not affect the legal independence of discretionary power. Avoiding any reference to due process, he intended to cite Magna Carta as precedent, which sanctioned prerogative detention and confirmed, rather than weakened the traditional rights of the Crown within the law.
In response, Hampden’s lawyers needed to show that Magna Carta was not simply declaratory of the common law, but that it had authority in statutory form, which would guarantee specific procedures at law. Citing the 1354 statute of due process, Sir George Croke, the first judge to rule against the king, would argue that the “law of the land” needed to be narrowly defined to ensure that presentment and indictment preceded imprisonment: “That by that Great Charter, none should be taken or imprisoned, but by due process of law… a writ to imprison one upon suggestion… was illegal.” The subject’s liberties could only be protected by subjecting the discretionary powers to strict legal interpretation.
Four centuries on, it is the United States where the precedent of Magna Carta as higher law and Coke’s dictum in Bonham’s Case (1610) that a statute might be void for contravening ‘common right or reason’ has been realized. As the frequency with which the U.S. Supreme Court has referred to Magna Carta shows, it has been considered instrumental in the expansion of civil rights and the judicial review of executive powers. In response to the detention of foreign suspects at Guantanamo, the Supreme Court has overturned the arbitrary actions of the George W. Bush administration on three separate occasions by declaring habeas corpus an inviolable constitutional right.
It is perhaps ironic to reflect that in England, our 17th century common law precedents cannot be used to overturn statute. Here, the continuum between Magna Carta and the modern protection of human rights is embodied in the European Convention and given domestic effect by the Human Rights Act 1998. Articles 5 and 6 of the convention, which include the right to a fair trial and not to have justice delayed, are clearly based upon the principles of chapter 29. The act is the closest England has come to a bill of rights in a codified constitution.
Whilst the lawyers and judges of the 17th century did not invent the legal concept of liberty, through Magna Carta, they developed and made it accessible to subsequent generations. Today, as we strive to balance the demands of national security with the claims of individual liberty, the charter’s legacy is perhaps more relevant than ever. It is not only legally binding in England but continues to inspire principles of justice founded upon the rule of law. If the British government delivers on its threat to dismantle the Human Rights Act, it is perhaps to the 17th century that we need to return to redress the constitutional balance between fundamental law and politics. Eight centuries after King John sealed his commitment to end arbitrary rule, we should be celebrating, not destroying our constitutional heritage.
Nicola Saunders has a doctorate degree in early modern history from the University of Cambridge and is a historian specializing in the common law and the early 17th century judiciary. She can be contacted at email@example.com. Learn more about the Magna Carta by visiting London with the State Bar’s Litigation and International Law sections. More information about the 26th A Legal Week in London CLE program, April 19 – 24, 2015 is online at http://aweekinlegallondon.com/