https://titerreserde.ml/the-search-for-lady-godiva.php It is not faithfully rendered by a picture of Magna Carta either as some sort of magician's hat out of which ever more attractive rabbits pop over time, or as a simple ex post facto bit of politically driven myth-making on the other. It is more complex than either of those options; more noble than either too. Noble, not simply because it is traditional, since there are plenty of obnoxious traditions faithfully observed, but because it is a tradition of a particular sort, a rule of law tradition.
And that makes Magna Carta noble, too, since it was a plausible—and has been taken to be an actual—emblem of and contributor to that tradition. Unless it is five minutes old, every society that has law has legal traditions. But they differ, and not just in their particular rules and institutions. Enduring legal traditions come to be manifest, not simply as particular precepts of law, or particular canons of interpretation or even in particular ideals, but in something broader and more overarching. Comparative lawyers have noted that beyond particulars of machinery and rules, legal traditions embody characteristic and distinctive 'styles' 50 and even 'visions' 51 of law.
More deeply, a number of authors have emphasised the extent to which particular legal orders embody and presuppose distinctive ideologies in a broad sense, distinctive 'ways of viewing both law and the world', 52 which incorporate particular constellations of values, particular 'legal views of reality' through which lawyers see the world, particular 'legal sensibilities' 53 which are pervasive and inform legal goals, means, doctrines, and machinery. These sensibilities are not seamless or monolithic, and they are subject to strain and to change, but again it is typical that this change has deep roots in what has gone before.
And finally it is not merely values and sensibilities within the law that matter. Societies differ in the importance and value that they place on law, and such differences also endure. As the American comparativist, J. Merryman, has noted:. One such 'set of deeply rooted, historically conditioned attitudes' has to do with the rule of law. It is true, significant and has widely been thought appropriate in Western legal traditions that law be an independently significant aider and constrainer of the exercise of power in society. That has not been the only stream in the tradition; it has mixed choppily with other streams and its significance is often exaggerated, but by comparison with many other legal orders, there has been something significant there to exaggerate.
That has not always or everywhere been so. I will be brief here, since elsewhere I have not been. Power is a problem because left to their own devices, power-holders cannot be relied on to avoid exercising it capriciously, and at worst wildly. And as too many people over too many centuries have not only observed but experienced, capricious power is terribly unsettling and wild power is simply terrible.
More generally, the potential is alive even when power is not wild but merely, to use the more commonly identified term for this order of vice, arbitrary. Arbitrary power is not necessarily wild but it is usually and already objectionable. That is because, to put briefly what I have argued at length elsewhere: arbitrary power diminishes our freedom, causes our lives to be fearful, denies our dignity, and destroys possibilities of fruitful cooperation among citizens and between citizens and states.
And what makes power arbitrary? When power-wielders are not adequately controlled, the grounds for their exercise of power are unspecified and untestable, and that power is beyond serious question or review, there is a problem. Even if you have that, but power-wielders are inclined and able to use their power without any need to provide space for its targets to be heard, to question, to inform, or to affect the exercise of power over them, there is another problem.
Neither problem is a good one to have. Within rule of law traditions arguments have raged over generations about whose and what sorts of power need to be tempered, how and by what institutional structures, in what circumstances and with what institutional devices. Answers have differed within different rule of law traditions and over time in the same ones.
Their sources are many, varied, intertwined and at times in tension with each other, but they matter. If they are effective, that is a good thing. If not, the rule of law stands as a critical principle, available to be invoked when political power-wielders seek to evade the constraints of the rule of law, which they are often inclined to do.
Anyway, that is the argument. It is quite an achievement to get rulers to agree; who but masochists voluntarily bind themselves? But in some places the argument has pretty well won the day, so effectively indeed that it need hardly be made.
Unlike Henry VIII or James I, their contemporary successors have no counter-arguments, though they still chafe from time to time, and seek to evade the implications of arguments they do not have room to deny. Not only is the rule of law never the only game in town, it never wins every game. Nor should it, since there are other things we value that might be in tension with it and might require compromise.
But a tradition in which the rule of law has been an animating value shared—always unevenly but still significantly—among initiates, lay people and institutions, is a good one to have. It is not universal. On the contrary, as the German political theorist, Heinrich Popitz has noted:. Distinctive and strong rule of law traditions are, then, not natural facts. In the Russian imperial state tradition, to which I have referred, law was not a central cultural symbol, and to the extent that it counted, it did so as an arm of central power.
The notion that power should be restrained by law, that law should have a power-tempering role, both horizontally among members of the society and vertically between political power-holders and their 'subjects', or that it should do anything but transmit central orders, was for long periods unknown, then heretical, more commonly alien, and late and weak in developing. Here law was viewed primarily as properly a subordinate—indeed servile—branch of political, administrative and, at times, theocratic power.
This is not ancient history. Apart from the countries I have mentioned, many recent and contemporary legal orders, for example those of Myanmar and Sudan over the last decades, 58 make use of law systematically to serve ends contradictory to those of the rule of law. Tempering power is simply not the name of any official game. Other polities still have some rule of law values and practices but they are weak in comparison with other values, or are overborne in times of crisis.
In some legal traditions, however, rule of law values are strong. They are evident in the practices of law and more generally the exercise of power, and they matter and are thought to matter in the everyday workings of a society. Where that is so, it is only partly traceable to the activities of contemporary actors, or to particular rules and institutions, though these matter too. It is buttressed, made to endure, made part of the legal culture, by less obvious but no less important, indeed indispensable, legal traditions which underpin and transmit the values and practices many unwritten that accompany them.
And that leads me to my two and three cheers. Whatever the detailed targets and beneficiaries of Magna Carta, hostility to the arbitrary exercise of power by the king was manifest in many of its provisions. It might not have been a general thought among the barons who negotiated the particular provisions of the charter, but many of its chapters exemplified a general principle.
That principle was already part of arguments found in Western, among them English, legal traditions, and it continued to be a matter of argument and institutional experimentation. The line was not straight, the arguments were often lost, power and interest trumped them and co-opted them often enough. However, there were victories, many of them coming to be institutionalised in our legal systems, and our expectations of them.
That seems to me more than enough reason to celebrate the contribution of Magna Carta to the rule of law tradition, without which it wouldn't have existed, which made of it what it has become, but to which it gave argument, momentum and heft that was both symbolic and real. That does not make me a votary, since the document would have been of no account without the tradition and there is much else to look to for the rule of law features of our tradition, but it also does not make me a sceptic. The rule of law, to repeat, is a noble achievement, and the indeterminate contribution of Magna Carta to it deserves celebration.
It didn't do it on its own, but then who of us does anything much good on our own? Question — That was a fantastic presentation. You mentioned a whole lot of other cultures and legal systems across the world.
Do any of them have an th, a th or a th celebration? Martin Krygier — Paradoxically the Hungarians are now wheeling out the Golden Bull, but not for the right purposes. I do not want to go on too much about Hungary; it is a sad story. After the collapse of Communism in , for a brief period of nine years, the Hungarian constitutional court, newly formed, was the strongest, or at least the most ambitious and active, constitutional court in the world, certainly in the post-Communist world.
The then president of the court was trying to draw on, in a country which after all has very long authoritarian traditions, the Golden Bull to say, 'Look, we have got that'. Actually I think it does support my argument. Sumption is a very clever fellow, so I am sure he has got his facts right. But to forget or ignore or deny the significance of this just because people exaggerate it is I think an error.
I do not know enough about comparative legal history. I do know that you could find in western European countries, several of them, a whole lot of prior history which could be drawn on to distinguish, maybe not France from Britain, but France from Russia. They certainly looked different to the famous Marquis de Custine, who went to Russia in the nineteenth century and was just amazed by the lack of law there.
He went from France. He just could not find it. What the Tsar said seemed to go without saying. I work on screwed up countries, or ex-screwed up countries, trying to think how you could actually generate some rule of law values. It is not an easy job and part of the reason it is not an easy job is not that you do not have the document—you may or may not—but you have had traditions where these arguments do not have purchase.
Comment — Thank you very much for this widespread look beyond Britain to the Continent and Europe. I can add the arrangements in the Kingdom of Aragon, which was around , and in Denmark you had a similar development. Much of that really goes back to the arrangement between the conquering Germanic tribes in northern Italy facing highly developed urban societies.
They did not exist anywhere else in Europe but they had survived the fall of the Roman Empire and the rulers had to accept that these cities were ruling themselves. Later on, of course, you get the development of the free cities in many parts of the Continent. The 23rd of September was the th anniversary of the birth of his grandson, Kublai Khan, under whose imperial rule, as the founder of the Yuan dynasty, the extent of the China we know today was determined.
This th anniversary of Magna Carta should be approached with a degree of humility. In two earlier addresses during this year's caravanserai of celebration, 59 I have set out certain themes, each recognisably of constitutional significance, which underlie Magna Carta. In this address I wish to focus on four of those themes, as they developed over subsequent centuries, and to do so with a focus on the executive authority of the monarchy.
The themes are:. First, the king is subject to the law and also subject to custom which was, during that very period, in the process of being hardened into law. Thirdly, the acts of the king are not simply personal acts. The king's acts have an official character and, accordingly, are to be exercised in accordance with certain processes, and within certain constraints. Fourthly, the king must provide a judicial system for the administration of justice and all free men are entitled to due process of law. In my opinion, the long-term significance of Magna Carta does not lie in its status as a sacred text—almost all of which gradually became irrelevant.
It lies in these underlying themes, as they were further developed over the centuries in the course of English constitutional history, sometimes with reference to Magna Carta and sometimes without such reference. Magna Carta, and the almost equally significant Forest Charter into which four clauses of the text were expanded , are intensely practical documents. They list and resolve a range of specific grievances, and are almost devoid of statements of high principle. The charters are the first of a long line of similar documents in English constitutional history, many of which refer to or replicate provisions of the charters.
Almost immediately the charters acquired a totemic state as a statement of proper conduct on the part of the king. However, in its detail each charter was a pragmatic, time-bound statement. The Magna Carta was preceded by statements of the grievances on the part of the barons, including in writing. Similarly, over the course of later centuries, the nobles, for as long as they constituted the political nation, then the broader political nation as that developed, demanded resolution of specific grievances to restore compliance with proper conduct and, sometimes, for reforms to the processes or policies of government.
Often this took the form of a similarly pragmatic, written list of demands. Some of those were granted, some were granted only to be abjured, and some of those re-granted, in whole or part later. Sometimes the process was accompanied by violence against, and even the deposition of, the monarch of the day. The process that led to Magna Carta was eventually subsumed in parliamentary procedure. As parliament acquired a recognisable shape, the process took the form of a petition to the king to remedy specific grievances.
The charters themselves were the contemporary equivalent of what came to be called statutes—as the two charters were subsequently confirmed to be. The word 'statute' was first used in It was the version of Magna Carta, the very version that we have in this Parliament House, that became the first entry in the official compilation of statutes. Those referencing Magna Carta are identified by asterisk:. Just as the version of Magna Carta was almost immediately abrogated, only to be revived in a somewhat different form in the and charters, culminating in the final texts of , some of the later concessions were similarly abrogated.
I refer, for example, to:. Under the Tudors, the process of the political nation making formal demands was largely in abeyance. This was a function of the settled state, and the strength, of the monarchy during that era. That changed under the Stuarts. The interaction between the political nation and the Stuart kings is too long to try to summarise in a lecture. The political nation in parliament was often in conflict with the king. The parliamentary petitions, resolutions and bills of this era are numerous. The principal characteristic of the charters—as pragmatic documents resolving specific grievances, bereft of statements of high principle—is reflected in several landmark documents, under the Stuarts:.
Some years ago I drew on Francis Bacon, to distinguish the common law legal tradition from the civil law legal tradition, by reference to two schools of epistemology—empiricists, most of whom were British philosophers, and rationalists, most of whom were Continental philosophers. Bacon said: 'empiricists, are like ants; they collect and put to use, but rationalists are like spiders, they spin threads out of themselves'.
In the case of the political and legal development of the Constitution, the process has a combination of the ant and the spider, which Bacon, in his The New Organon , described as the approach of the bee. After the reference to the ant and the spider metaphor, he added: 'But the bee takes a middle course: it gathers its material from the flowers of the garden and of the field, but it transforms and digests it by a power of its own'.
The great English legal historian, Frederic Maitland, characterised the import of Magna Carta thus: 'in brief it means this, that the king is and shall be below the law'. The contribution of the charters to the rule of law is of considerable significance across the centuries. The proposition that the king was subject to the law was not established by Magna Carta.
Royal autocracy was not a feature of early medieval Europe. Subsequent iconic legal texts—of Henry de Bracton and Sir John Fortescue—would state the proposition without reference to the charter. However, the charter was the earliest written affirmation of the principle, although it was not expressly stated in these terms in the text. It was a theme which underlay the actual provisions of both charters.
It is similarly implicit in the larger number of successor texts that I have listed. The refusal of the political nation to countenance an absolutist monarch is best exemplified in the lengthy record of the deposition of Richard II, including 50 Articles of Impeachment. The record asserted that Richard would 'at his own arbitrary will Shakespeare captured the idea in the lament of Richard: 'The breath of worldly men cannot depose the deputy elected by the Lord'.
Such views returned with the Stuarts, in what came to be called the divine right theory of monarchy. James I had written in defence of this approach in learned and literate texts when still only James VI of Scotland. He understood, when he assumed the throne of England, that this theory, or rather theology, was not accepted there.
Whilst he maintained that the king was above the law, he accepted the long established restraints. However, he was determined not to permit any expansion of, and to exploit any ambiguity in, the restraints on the scope of his authority. His son did not accept the restraints and shared the fate of Richard II. As is well known, the principal mythologist of Magna Carta, and the source of the prominence lawyers continue to give it today, was Sir Edward Coke as both judge and parliamentarian.
Coke's adoption of the mythology of the charter, as Exhibit A in the theory of an 'ancient' English constitution, constituted an alternative to James I's belief that royal authority came directly from God. James said: 'Kings were the makers of laws—not the laws of the Kings'. Therefore, the king was subject to the law. He believed that the prerogative was created by the common law. Coke's writings invoked a bizarre range of alleged historical events and not infrequent fabrications. However, Magna Carta was real enough and, to some degree, was based on tradition as well as making reforms.
Coke's contemporary, John Selden, was more measured and intellectually honest in proclaiming the significance of the charters. For parliamentarians, the issue was where sovereignty lay: with the king or with the king in parliament. For lawyers, the issue was not sovereignty, but the source of governance legitimacy: with the sovereign or an organic legitimacy from the development of institutions over the centuries.
Both of the distinct approaches of parliamentarians and of lawyers invoked Magna Carta. It was the totemic state of the document, rather than its detail, upon which reliance was placed. The text invoked during these debates included clauses of the text that were extirpated in all subsequent reissues and confirmations. Parliamentarians sometimes relied on the provision for the 'consent of the realm' for certain taxes—a provision of the text which disappeared. Lawyers invested the concept of the 'law of the land' in clause 29 with later developments, namely reforms of what we have come to call 'due process'.
Nevertheless, the invocation of Magna Carta, even if unhistorical, was a centrepiece of the affirmation of the rule of law in the conflicts of the seventeenth century. Rule of law issues under the Stuarts included the assertion of a royal prerogative not to enforce the law, indeed to dispense with an enacted law. That one of the steps leading to the Revolution was a purported exercise by James II to suspend the operation of legislation discriminating against Catholics, should give pause to those who take Magna Carta as a direct source of liberties, which it was not.
The import of Magna Carta as a source of the principle that the king is subject to the law was superseded by the Bill of Rights of It is entirely appropriate that that document took the same form of a list of specific, practical grievances, pragmatically resolved without statements of high principle. The English approach of developing the common law by incremental steps, based on real life disputes, is also a feature of the development of the English Constitution.
This is the way the English Constitution developed from Magna Carta through its successor documents. The king's obligation to consult had a feudal origin. What was sought, at least in England after the Norman invasion, was assent, not consent. Nevertheless, particularly with respect to taxation, the strength of the monarchy, which varied considerably, determined how close assent had to be to consent.
The original Magna Carta of imposed restraints in numerous respects. However, it implicitly gave, or affirmed, consent to the limits some clauses permitted and to the practices it did not change. The express provision in the text, requiring the consent of the realm for a form of taxation including precise detail as to how the 'realm' would be summoned to give consent, was deleted in all subsequent issues and confirmations. The barons who had been loyal to John, apparently regarded this as one of the provisions that insulted royal dignity. No doubt it was inserted by the more radical of the rebel barons of The necessity to consult before imposing taxes was not stated expressly.
However, that was the very process that led to the charters, particularly the reissues and confirmations.
The Magna Carta was a charter of liberties and political rights obtained from King John of England by his rebellious barons in Originally published in the. [KINDLE] A Brief Guide to the Magna Carta (Annotated) by Arthur William Holland . Book file PDF easily for everyone and every device. You can download and.
This duty to consult was what we would now call a constitutional convention. During the thirteenth century, under John's son and grandson, Henry III and Edward I, the charters were confirmed on numerous occasions, often accompanied with an additional document remedying new grievances. This occurred in express exchange for a grant of taxation. The principle that assent of a council—eventually parliament—was required for taxation was reinforced frequently by this systematic practice. It was not until Edward I's Confirmation of the Charters in —our very copy—to which the text was annexed, that the king made the express promise that certain taxes would only be imposed with 'the common assent of all the realm and for the common profit thereof'.
Traditional feudal impositions were excluded and, more significantly, the promise did not encompass every conceivable source of royal revenue. Nevertheless, one of the most significant themes underlying the charters was now in writing. The struggle of succeeding monarchs to find sources of revenue which did not need consent was perhaps the most basic political dynamic over the course of the five centuries after the charters. Advisers to the Crown kept dreaming up new tricks to raise revenue, which led to resistance.
Some things don't change over the centuries. Complaints about such matters arose often.
For example: in the Statute of Westminster of , the Remonstrance to Edward I and in his response in by the Confirmation of the Charters, in the Articles upon the Charters, and in the Ordinances forced on Edward II in Such complaints became particularly intense under the Stuarts. James I exploited to the limit his power to extract revenue in the exercise of prerogative power, without parliamentary approval, for example, by levies on imports or the grant of monopolies.
Charles I continued this practice, perhaps most famously by extending the obligation to pay ship money from coastal regions to the whole nation and making it an annual levy. He also revived long lost battles to expand Crown revenue, for example, by trying to extend the Royal Forest contrary to the Forest Charter, as implemented under Edward I over three centuries before. When Charles I failed to get parliamentary approval for additional taxation, he proceeded to force his subjects to advance loans. Those who refused were imprisoned. When five of them sought habeas corpus, they were met with a Crown submission that the king had the power to imprison without cause.
The prosecution did not want to admit that their imprisonment was based on a demand for money that had no lawful basis. This came to be known as the Five Knights Case , to which I will return. It appears that Charles I ignored the fact that it was the demand of Richard II in for forced loans that began the conflict that led to his deposition and death.
Of fundamental significance during the Stuarts was the transformation of the duty to consult into a right of concurrence. This process began when parliament was transformed, during the fourteenth century, from an event into an institution. There could be no doubt about the position after the Revolution of The duty to consult under Magna Carta had been superseded.
The monarch no longer consulted the political nation. The scope of residual executive power remained, however, contentious. It still is. In , and for centuries thereafter, kings and queens of England found it difficult to distinguish the personal role of the monarch and his or her formal status as a disembodied Crown. At its most dangerous, this proclivity took the form of an assertion of divine authority, not subject to restraint. This frequently led to tension and even conflict with the political nation. As early as , a group of barons promulgated a written declaration, known as The Boulogne Agreement, distinguishing between the Crown and the person of the king.
That treatment of the king was not then common in Europe. As the Lancastrian warrior turned Chief Justice, Sir John Fortescue, put it in the late fifteenth century, in France the king was 'regal', but in England the king was both 'regal' and 'political'. It was the 'political' monarch who was subject to constraints.
Gradually, over the centuries, the extent of the prerogative, the 'regal' monarchy, was restricted in scope. However, a remnant of unrestrained power still exists and is relied upon from time to time to this day. That is another lecture. The largest number of clauses in Magna Carta, and virtually the whole of the Forest Charter, are directed to overturning the past abuse of power by the king, particularly the extraction of revenue through exploitation of the incidents of feudal tenure.
However, in this and in the successor documents, not all were longstanding limits. The agreement reflected in these documents constituted changes to what was regarded as proper, or even fair. The problem was always enforcing the political promises in the charters. Over the first century from the reissue, the focus of most frequent complaint was that the king failed to honour his promises of the Forest Charter.
After a century of evasion by Henry III and Edward I, by the Articles upon the Charters of , the latter was forced to agree to an independent commission of inquiry into the proper boundaries of the Royal Forest. The king lost virtually every point in that process. Gradually, over time, these provisions became less important. In the case of the Forest Charter, the one quarter to one third of England, where an absolutist monarchy existed, was substantially reduced in size. Social and economic changes rendered many other provisions of the charters irrelevant.
However, as the successor documents show, there were always new grievances. There were intermittent attempts to override the king's authority, with little effect. The text of Magna Carta established a committee of 25 barons which would, in effect, take over the government if the king failed to honour his promises. This disappeared in the next version of , never to return. Under the Provisions of Oxford of , to which Henry III was forced to agree, a council of 24—half nominated by the king, half by the barons—was established to reform the government. A panel of 12 barons, under the leadership of Simon de Montfort, took effective control of the government.
This arrangement collapsed with Simon de Montfort's defeat and death in The Ordinances of , while they lasted, gave considerable executive authority to a committee of 25 barons, called the 'Ordainers'. In , Richard was forced to accept supervision by a baronial committee, called the 'Appellants'. Conflict over the scope of the prerogative was, as is well known, a feature of the reign of the Stuarts. I have discussed this at some length for the early years of James I, when Coke was a judge. In the view of Sir Edward Coke, the prerogative was a principle of the common law.
The focus at first was on the interaction of the common law courts with prerogative courts—Admiralty, High Commission, Chancery—and the king's power to act without parliamentary approval, including to raise revenue and to make new law by mere proclamation. Whilst acknowledging the restraints of English custom by the creation of the parliament—an institution which he deplored—James I, asserting his divine authority, emphasised that the established restraints could not extend into what he called 'matters important'.
Even Oliver Cromwell rejected parliamentary intrusion into his authority with a crude, dismissive reference to 'Magna Farta'. In more demure mode, proponents of executive power over the centuries characterised the charter as a concession by the king in the exercise of his prerogative discretion. The approach of lawyers and parliamentarians, to what they had come to call a charter of liberties, characterised it as a written recognition of tradition.
In modern democracies, the sovereign people have replaced an individual hereditary sovereign as the source of political legitimacy. However, the scope of permissible executive conduct, unsupported by legislation, particularly on what the executive believes to be, to use James I's words, 'matters important', still arises from time to time. These matters are not limited to issues of national security.
Unlike the first two themes—the rule of law and the duty to consult—the scope of executive power theme is still with us.
Its extent has reduced but it is not superseded. The provision of justice was a primary duty of a feudal monarch. Detailed provision for the justice system constitutes the second largest group of clauses in Magna Carta, and was a primary objective of the Forest Charter. This was also true of most of the successor documents. The numerous, specific provisions about the law were accompanied by one of the few—and, therefore, enduring—statements of general principle.
I refer to the well-known clause 29 of the text amalgamating clauses 39 and 40 of the version. The promise not to impose any sanction without 'lawful judgment of his peers or by the law of the land' and the promise not to 'refuse or delay right or justice'—are words that have never lost their force. They have been invoked continually, both as a basis for complaint and as a principle for reform.
The detailed provisions for the administration of justice in the charters—most of which appear to be reforms rather than restoration of previous custom—were reflected in further such provisions in the successor documents. Most of them, with considerable specificity, abolish abuses and make reforms. That is so in the Provisions of Oxford; in the Provisions of Westminster; in the second Statute of Westminster of ; in less detail in the Confirmation of the Charters of ; in general terms in the Petitions of and ; again in much detail in the Ordinances of ; of lasting significance, in the Six Statutes of Edward III; but with most dramatic consequence in the 50 Articles of Impeachment of Richard II in , described as a list of 'frauds and deceitful tricks of the said king'.
They were invoked because they added detail to Magna Carta's promise of due process of law.
Indeed, it was the statute of that extended the protection of clause 29 to the whole population. The original charter provision extended only to 'free men', more than just the barons but still a minority of the population at that time. I have referred to the challenge to forced loans demanded by Charles I.
Magna Carta is such a Fellow, that he will have no Sovereign'. A document that 'has no sovereign' is a good description of a written constitution. The charter was not a 'constitution' in our understanding of the concept. It was, however, of constitutional significance. So was the Petition of Right which, like Magna Carta, was a series of demands arising from the practical grievances of the day. Charles I was forced to accept the petition. It affirmed certain rights and, of particular significance for the administration of justice, it reinforced the principle that the executive cannot deprive citizens of liberty without cause.
At a time before the judiciary had security of tenure, it was parliament that did that, not the courts. The Petition of Right built on, and extended, the scope of Magna Carta in its role as a creation myth. One commentator put it recently: 'the Petition of Right , conceived as a recapitulation of , transformed the baronial charter of privileges into a declaration of the rights of free-born Englishmen'.
The numerous specific reforms of the justice system in Magna Carta and the Forest Charter were entirely appropriate for that era. The statements and petitions of successor documents are of the same general character—setting out grievances and enacting reforms in response—dealing with similar issues for different times. Understandably, clause 29 of the charter—as the only statement of principle in the text—is the best known, precisely because it is not time bound.
That clause has been influential throughout the eight centuries, even if the general words have been infused with content that the original authors could never have conceived. From the time that the judiciary was ensured independence, by the Act of Settlement of , the courts joined parliament as a restraint on the executive branch. Notwithstanding that the words of clause 29 retain their resonance, Magna Carta has been superseded in this respect also. Two weeks after D-day in , George VI, returning to Windsor Castle from London, was fuming at the latest frustration of his royal wishes, administered by Winston Churchill.
As the car passed Runnymede, he gesticulated out of the window and proclaimed: 'And that's where it all started! It is by no means clear how much actually 'started' at Runnymede, and how much was simply confirmed. However, the written text, proclaimed on many occasions throughout the land, was the start of a long process of constitutional development—carried through by the successor documents—of which we remain the beneficiaries today.
For a document that lasted barely nine weeks Magna Carta 80 has had a long run. The secret to its survival has been its ability to adapt even though its authors in expected it to last in perpetuity. Although Pope Innocent III annulled the charter in August it was reissued twice in the following year including a special version for Ireland , 82 once in 83 and became a statute in 84 and again in As historians have long known the charter has had a significant post-thirteenth-century history, 92 especially in the seventeenth century where it was put to new uses and passed into a mythology that in some ways has survived to this day.
It was left to later generations to create written constitutions, control of the executive branch of government, trial by jury, an independent judiciary, parliamentary government, and electoral democracy based on the universal franchise via the secret ballot. None of these ideas or arrangements existed in , which is why it is nonsense to attribute to the actors at Runnymede the capacity to have laid the foundations of the modern sense of the term rule of law. They were not prophets and they stipulated in chapter 63 of the charter that their agreement with King John would last forever.
But of course that was not so, for as a judge pointed out in , 'Magna Carta has not remained untouched; and, like every other law of England, it is not condemned to that immunity from development or improvement which was attributed to the laws of the Medes and Persians'. The two most famous chapters of were chapters 39 and 40, which were combined with a slight alteration into chapter 29 of Chapter 29 reads:.
Many of the arrangements we associate with the rule of law were initially denied to Australia on its settlement in A supreme court able to issue habeas corpus, for instance, did not begin operation until May , trial by civilian juries did not come in until , elected elements in the legislative councils were only introduced in the s, and of course responsible government did not emerge until the s. These are all elements of our constitutional arrangements that we call the rule of law. While Australia did not create most of these arrangements, other than voting by ballot, which was first legislated for in Tasmania in January , we have both carried on the tradition and have shaped it to our own circumstances.
Nevertheless it is important to appreciate our present state. Australia ranks very highly on international indices of the rule of law. A ranking by the World Justice Project ranked Australia as tenth out of 99 countries behind New Zealand and several Scandinavian countries and in a democracy index published in Australia was ranked sixth out of countries.
Transparency International of Berlin rates Australia as the eleventh least corrupt state in We are, after all, one of the oldest democracies on the planet, having elected our legislatures since the s, and we have been an innovator in the art of electoral efficiency. Australians ought to be aware that we taught the rest of the world how to vote in an effective and efficient manner. My concern today is to account for the uses to which the charter was put in Australian history. As others will cover the law I will confine my remarks to the political and social uses of Magna Carta.
By the nineteenth century the charter was beginning to be used in Australia and elsewhere in political and legal debates: uses that have continued in Australia right up to our own time. Opinions about the charter have varied from adulation and respect to dismissive irrelevance. One writer called it a secular relic and it has been described as the keystone of English liberty. The current Australian history curriculum initially did not include Magna Carta at all until protests made by at least one parliamentarian and others managed to get the charter into the curriculum. Still, inclusion in the curriculum does not guarantee that it will be properly taught.
The textbooks written to implement the curriculum are one index of the contemporary knowledge of Magna Carta in Australia and are full of mistakes. The most common mistakes are: This is the most common mistake made in the textbooks and often repeated by some members of the Commonwealth Parliament.
First, while John could read there is serious doubt about whether he could write. This was done by attaching the seal to a ribbon, which was then put through a hole in the parchment. In and scholars who examined the four surviving copies of the 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 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 thirteenth 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 and in England when William Caxton printed the Recuyell of the Historyes of Troye in This piece of nonsense appears in a paper issued by the Western Australian School Curriculum and Standards Authority and in several of the textbooks.
Pearson History 8 states that:. The Oxford Big Ideas, History 8 Teacher Kit also says that Magna Carta was 'seen as one of the first steps towards the development of legal and political rights for "the people" and the start of modern democracy'. 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 meant to be free, but the right to vote was only available for a tiny minority of male landholders, since the franchise was based on a property qualification. 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 the Prime Minister pointed out to the House of Representatives in , a charter of human rights or a democratic document. The king made a series of promises about how to deal with certain medieval matters, but there was 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 Henry de Bracton's book circa , 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 though it was possible to do so in the Australian colonies in the s.
The problem is that while the rule of law did gradually emerge, especially with the Bill of Rights in , it takes a knowledge of seventeenth-century constitutional history to understand this and that is not covered anywhere in the Australian history curriculum. A related misconception is that habeas corpus was somehow created by Magna Carta despite the fact that the term habeas corpus does not appear in the charter at all.
There was also a view that Magna Carta created a right to trial by jury when it referred in chapter 39 to legal processes 'except by the lawful judgment of his peers'. The latter involved summoning oath helpers who were usually neighbours of the accused. The evidence shows that Australians are ignorant of most of this.
Successive studies of civic knowledge show that knowledge of basic civics remains very weak while knowledge of the history that lies behind our institutions and values is even worse. The results of surveys suggest that there is cause for concern. In , for example, a study of 15—19 year olds reported that:.
The National Library digital newspaper database gives a total of articles on Magna Carta in the 30 years to but only in the 40 years to Even allowing for repetitions, and the fact that there was a South Australian racehorse called Magna Carta in the s that bumped up the number of citations of the term Magna Carta, there was far more coverage in earlier times than there is now. It was routine for newspapers, even those read by the working class, to regularly publish articles on the subject.
Magna Carta was used both in legal cases and in political arguments to criticise government policies and to assert rights that the colonialists thought they deserved, but which they thought had been infringed or withheld by the British-controlled executive. On occasion the Sydney magistrates deployed the charter in somewhat fanciful circumstances. One unfortunate guest at a wedding in was assaulted after singing a song that aroused others to an altercation.
After the singer was rescued by the bride and groom the attackers were charged with assault. The magistrate who heard the case thought that the whole affair was an attack on the liberty of the subject. According to the press report:. The magistrate then committed the accused to be tried at the quarter sessions after expressing his opinion on the virtues of the songs that had provoked the attack. Clearly matters had moved on from the transactions at Runnymede and by now the charter stood for an idea of general liberty rather than as a document.
This use of Magna Carta to fashion or underpin contemporary arguments was evident during the debates over the demand for responsible government in the late s and early s. In a resolution was moved in the New South Wales Legislative Council in favour of responsible government that included the assertion that the Crown was attempting to deprive the colony of the elective franchise, which, it was claimed, was an immemorial right 'asserted in Magna Charta'.
The charter was also sometimes invoked for less idealistic reasons when Catholics and Protestants cited it in arguments against each other that went on and off between the s and the early s. The issue was whether the Catholics could take credit for Magna Carta given that Archbishop Stephen Langton led the barons at Runnymede and, of course, in the thirteenth century England was still a Catholic country.
Lastly, Magna Carta and inherited constitutional landmarks were part of the education system for both school students and the legal profession in the nineteenth century. There is abundant evidence that educated Australians and lawyers were aware of the accumulated constitutional landmarks that had emerged since This was in part a consequence of their education in history, which meant then constitutional history. One speaker at a dinner for the members of the South Australian Parliament in stated that:.
This was of course nonsense since the principle only emerged later when parliaments met regularly, as they did not in There is abundant evidence that this knowledge and appreciation of the English constitutional tradition survived well into the twentieth century amongst members of the Commonwealth Parliament and was until recently a mark of 'most educated persons in the Anglo-Saxon world'.
On the occasion of the th anniversary of Magna Carta in , 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 West Australian press at the same time that debunked many of the commonly held myths about 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 , 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'.
One schoolboy thought in that the king was forced to sing the charter, while another thought that the charter provided that no free man could be hanged twice for the same offence. In the aftermath of the th anniversary a distinctly sceptical view of Magna Carta emerged based on modern scholarship. He wrote to the Pope to get it annulled, who agreed with John despite the strain between the King and the Church at the time. Full-scale civil war then broke out between John and his barons. It only ended after John's death from illness in A second version of the Magna Carta was issued by Henry III in , which was granted explicitly in return for a tax payment from the whole kingdom.
The Magna Carta is considered one of the first steps taken in England towards establishing parliamentary democracy. During the Stuart period, and particularly in the English Civil War, the Magna Carta was used to restrain the power of monarchs at a time when monarchs on the continent were supremely powerful. Even more recently, the basic principles of the Magna Carta are seen very clearly in the Universal Declaration of Human Rights, penned in just after the Second World War.
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