WHAT HAS SURVIVED?
Magna Carta, since the 13th Century, has been looked to symbolically for guarantees of royal conduct and the regulation of power between governors and the governed. It has been respected and referenced whenever individual freedoms have been threatened or needed to be asserted. It has been regarded as akin to legislation and in the late 15th Century was even referred to (inaccurately) as the “laudable Statute of Magna Carta”. The fact that there are so many versions of the document adds to its mystique. But it is not so much reference to the words of any particular clause that is important: the whole document is symbolic of the continuation of the “good old laws” of England, even unwritten laws, and of the subjection of all, even monarchs, to those laws. The Magna Carta’s importance lies more in the principles that underlie it, than in its text – and in the symbolic way in which it has been invoked for 800 years in many different countries and circumstances.
From the late 13th and early 14th Centuries the Magna Carta (the 1297/1225 version) became regarded as the pre-eminent statute of the realm. It was given pride of place in publications of statutes and other legal texts. It was lavishly illuminated in the fashion of the times. It played an important part in legal education, including as a source of moot questions in legal training. It was publicly proclaimed from time to time and copies displayed. It was cited in political debate. It was cited in litigation and as authority for legal remedies from the monarch by petition or otherwise. It was “interpreted” in many ways.
Certain key provisions became identified as the sources of rights enjoyed by all subjects, including due process of law (the 1297 version is quoted).
Clause 5: “The keeper, for as long as he has the custody of the land of such (an heir), is to maintain the houses, parks, fishponds, ponds, mills and other things pertaining to that land from the issues of the same land, and he will restore to the heir, when the heir comes to full age, all his land stocked with ploughs and all other things in at least the same condition as when he received it. All these things are to be observed in the custodies of archbishoprics, 10 bishoprics, abbeys, priories, churches and vacant offices which pertain to us, save that such custodies ought not to be sold.”
- This is said to be a (or the) source of the law of trusts.
Clause 11: “Common pleas are not to follow our court but are to be held in a certain fixed place.”
- This separated the powers of the King’s court from the law courts that could deal with ordinary law suits involving property that did not require the King’s presence to be decided.
Clause 14: “A free man is not to be amerced for a small offence save in accordance with the manner of the offence, and for a major offence according to its magnitude, saving his sufficiency, and a merchant likewise, saving his merchandise, and any villein other than one of our own is to be amerced in the same way, saving his necessity should he fall into our mercy, and none of the aforesaid amercements is to be imposed save by the oath of honest and law-worthy men of the neighbourhood. Earls and barons are not to be amerced save by their peers and only in accordance with the manner of their offence.”
- This established a form of trial by jury (although limited at that time to nobility being tried by their peers) and assured proportionality in sentencing.
Clause 17: “No sheriff, constable, coroner or any other of our bailiffs is to hold pleas of our crown.”
- This was a move towards the establishment of an independent, professionally qualified judiciary and the reinforcement of moves that had already been taken (read with clause 35).
Clause 28: “No bailiff is henceforth to put any man on his open law or on oath simply by virtue of his spoken word, without reliable witnesses being produced for the same.”
- This imposed a burden of proper proof on those alleging infractions of the law and indirectly affirmed the presumption of innocence.
Clause 29: “No free man is to be taken or imprisoned or disseised of his free tenement or of his liberties or free customs, or outlawed or exiled or in any way ruined, nor will we go against such a man or send against him save by lawful judgment of his peers or by the law of the land. To no-one will we sell or deny or delay right or justice.”
- This is probably the most-cited clause of Magna Carta (being clauses 39 and 40 of the 1215 version), certainly in the criminal jurisdiction. It is the declaration of two fundamental planks of the rule of law – that punishment may only be imposed after due process of law and that the law is to be applied without improper external influence or corruption.
Another aspect of the rule of law is present in the charter itself, its mere being: that justice will be done by following rules that have been stated in advance and are knowable by all.
From the 16th to the 18th Centuries Magna Carta was invoked in battles between monarchs and parliaments over the nature of law, in defining the prerogatives of sovereignty and individual property, through to conflicts between the people and anyone who claimed power. In 1628 Sir Edward Coke in his Institutes of the Laws of England included a complete commentary on Magna Carta. It was closely studied and quoted in constitutional struggles in the 17th and 18th Centuries when it came to legitimate protest and resistance to invasions of personal liberty (in the more modern sense of the word). It was a foundation for the Glorious Revolution of 1688 and the Bill of Rights of 1689 and the Act of Settlement of 1701. It inspired the American independence movement in 1776 and the American Constitution. And much more besides…
In 1948 Eleanor Roosevelt, the champion of the Universal Declaration of Human Rights, told the United Nations: “We stand today at the threshold of a great event in the life of the United Nations and in the life of mankind. This declaration may well become the international Magna Carta for all men everywhere.”