Eight hundred years on

Outlawry was a form of process, or unprocess, developed by Anglo-Saxons in the Dark Age when the notion of a judiciary was not known and when the only choice above this world was between God and Satan.  In the year of Our Lord 2015, the closest Australian advisers of Her Majesty Queen Elizabeth II – still the Supreme Governor of the Church of England but not the Empress of India – are conducting an audible debate about reintroducing a form of outlawry by depriving people of their rights as citizens of the Commonwealth without any judgment of their peers.  If they persuade the parliament and Her Majesty to make a law to that effect, they will risk going back more than 800 years and breaking a promise made by the English Crown that it would not go or send against any free man except by the lawful judgment of his peers or by the law of the land.

It took the English about seven centuries to build the rule of law and the Westminster system, with a little help from the Americans at the end.  It will take only a fraction of that time to lose both.  We have already given up two essential parts: that the executive should be run by an apolitical civil service with secure tenure, and that ministers should be responsible to the parliament for the failings of that civil service.  There has been an obvious and sustained decline in the quality of people attracted to the parliament or the executive.  That decline has not yet substantially damaged the judiciary, but there is little ground to hope that the decline will be reversed, or that the judiciary will remain untainted.

In a real sense, a lot of our legal process goes back to Magna Carta, given, it is thought, on 15 June 2015.  English philosophers have ignored it.  English legal historians and too many judges have just got it wrong, including some who should have known better.  Curiously, it is better known and better understood in places like the U S and Australia that are used to working under a written compact that separates powers and that has the force of binding and supreme law.

Magna Carta is one of the title deeds of Western civilisation, and the most significant tablet of the law in our history.  It is worth celebrating its 800th birthday.

I

Was it hot that day at Runnymede on 15 June 1215?  The barons, they say, turned up armed.  As well they may have – they were, as we say, up in arms.  They were revolting against their king.  And how they must have stunk – the king took a bath every three weeks; it is hard to see his barons being more regular.  They were a caste in transition from being rude Norman chieftains to blunt English magnates.  The courtliness that we see in courtesy was yet to be embraced by what passed for the aristocracy back then.

Feudal society involved what we would now call vertically integrated protection.  The barons (lords or peers of the realm) gave homage to their king, who gave them protection in return.  He had his courts; they had theirs.  They passed on their protection down the line to those beneath them in return for pledges of loyalty.  It was like the Mafia.  A man without a lord was in a bad place.

Doing the best that we can looking back from here, it does look like lords and vassals entered into kinds of compact or association when they gave and took promises and pledges between themselves.  We would say that there were mutual promises.  Since English kings claimed rights in Ireland and France, there was a range of peoples who might claim some right of choice about who they would give their allegiance to and accept as their lord.  We see this clearly in Shakespeare’s history plays. 

Politics then was very man to man.  There was a twelfth century aphorism ‘be in court when your friends are present and your enemies are absent.’  In his magisterial work Feudal Society, the French historian Marc Bloch had no doubt that ‘vassal homage was a genuine contract and a bilateral one.  If the lord failed to fulfil his obligations, he lost his rights’.  Among the justification for deposing a bad ‘prince’ (a king) was ‘the universally recognised right of the vassal to abandon a bad lord.’

At the heart of our notion of the rule of law – what distinguishes us from, say, Russia – is the notion that our ruler can only rule with the consent of the those who are ruled (the people) and that since everyone is equal in the eye of the law, the ruler too cannot be above the law but must be subject to it.  At least the germ of each notion is in the charter called Magna Carta, or the Great Charter of 1215, and that is why it is venerated in the U K and if anything more so in the U S and in this country.

II

There were in substance three main parties involved in making the Great Charter of 1215: King John, his barons, and Pope Innocent III.

Shakespeare saw King John as a weak and unloved king, and his press has not got any better since then.  A monastic chronicler in the 1240’s said: ‘Hell itself is defiled by the presence of King John.’  He was the last son of Henry II and Eleanor of Aquitaine, and the brother of and successor to Richard the Lionheart.  Henry II had a very long and successful reign.  He was a remarkable reforming king who may be called the English Justinian.  He was in some ways the father of the common law, but he is popularly remembered for something else that is germane to our subject.

King Henry II appointed a worldly man named Thomas Becket as Chancellor and then as Archbishop of Canterbury.  Becket had fought alongside the king and acted as ambassador to Paris.  Becket was neither a monk nor a priest, just a politician.  Henry may have completely misread him.  Dr A L Poole described Becket as ‘a vain, obstinate, and ambitious man who sought always to keep himself in the public eye; he was above all a man of extremes, a man who knew no half measures.’  That kind of person is not cut out for politics, especially if he is not too bright.

There was conflict over the unwillingness of the Church to allow the State to try clergy.  Henry laid down the law for Royal Justice in the Constitutions of Clarendon.  The Archbishop refused to roll over or toe the line – but Henry had appointed him to do just that.  Thomas was condemned by Henry’s court at Northampton on rough charges of contempt.  He turned and said: ‘Bastard lout!  If I were not a priest, my right hand would give you the lie.  As for you, one of your family has been hanged already.’

The haughty Archbishop went into exile for six years.  A political deal was put together, but when Thomas came back, he excommunicated bishops who had crowned a prince in his absence.  This was like declaring war on his king.  Knights who were zealous of the interests of the king were sent to remonstrate with Thomas.  They murdered him instead.  Politics then were more terminal as well as more personal.  It was as if Becket had wanted to die, and become a martyr.  The king did penance, but he maintained the royal line, and the English crown did not forget – Henry VIII, not necessarily in his role as Defensor Fidei (Defender of the Faith), made it illegal to call Becket a saint.

The immediate aftermath of the murder is instructive of the credulousness of the times and of the willingness of the Papacy to intervene in other nations’ business.  This vain, second-rate politician, who was not even of the cloth, was made a saint in near record time by popular demand.  In a short time an order of knights of St Thomas of Acre was instituted in the Holy Land.  Churches were dedicated to him, as were any number of miracles – and these were English miracles, God bless them!

Rome was ruthless on the English king and quite casually impeached the sovereignty of the realm.  Their king was forced to allow appeals to Rome, and he was required to provide for the support for 200 knights for a year for the ‘defence’ of Jerusalem.  He was required to take the cross for three years himself unless he was excused by the Holy Father.  This of course he was – he bought off his conscription to fight the Saracens by founding three monasteries.  These were really morbid and venal times and the Church was in up to its neck.

Well, the Church had had a kind of moral and political win, but the days of some kind of protectorate or apartheid for officers of the Church from the laws that applied to everyone else, including the king, had to be limited, and the reaction might be very nasty indeed.  It is not an issue that any church would want to run with today – arguing that priests who have been guilty of crimes against their flock should be protected by their church from the law of the land – and when in 1533, the English Parliament would in its break from Rome exultantly proclaim that ‘this realm is an empire’, it would do so in an act to restrain appeals to Rome.  The jackpot of course would come with the confiscation of the monasteries, including, one supposes, the three that Henry II donated to beat the papal draft.

King John was never in the same league as his father as a ruler.  He loved plotting, but he was not much good for anything else – except perhaps cultivating mistresses, at least a dozen, and breeding bastards.  He is thought to have procured the murder of a nephew who had claims to the throne.  His manifest untrustworthiness helped to shape our story, as did his choosing the wrong side in the fight of his life.

The barons might resemble either Mafia Dons or Jihadists, depending on your taste – whether you see the exercise as one involving terrorism is after all little more than a matter of taste.  One of their leaders, Robert fitz Walter styled himself ‘Marshall of the Army of God and Holy Church’.  The law itself was violent and relied on violence for its execution; officers of the king were liable in their bodies for the conduct of their offices. One of the 25 barons appointed under the Charter, Robert de Ros, was a marauding land rustler whose men attacked agents of the Sheriff of Yorkshire with bows and arrows.  Whatever else might be said about these barons, they were not stupid politically, and they had within them the seed of those king-breakers from hell who would humiliate the Stuarts more than four hundred years later, and lay the platform of what we know as the Westminster system.

Innocent III came from a family of the Italian nobility that produced nine popes.  As pope, he became the most powerful man in Europe.  He put down heresy or other defiance, if necessary by slaughter.  He interdicted and excommunicated kings.  He had the power of everlasting life and death over all Christendom and he did not tire of using it.  He was offended by the Saracen recapture of Jerusalem.  He launched the Fourth Crusade and his taking of Constantinople had lasting effects on world history.  He was probably harder on heretics than Muslems.  What is known as the Albigensian Crusade led to the slaughter of about 20,000 sectarian opponents.  Innocent III was not a ruler to be trifled with.  He was much tougher and stronger than King John.  It would take the English nobility much longer to get the upper hand over the Vatican.

III

Tax and overseas military service are likely sources of conflict between the crown and the people.  Frequently the two combine when the crown has to increase its taxes in order to fund a war.  John got into trouble with his barons on both counts.  King Charles I would lead his country into civil war in 1641 over his attempts to fund his armed forces.  King George III would lose the American colonies when the English parliament tried to recover the costs of a French war and colonial defence from the American colonies.  King Louis XVI of France would lose his crown and then his head after failing to get the will of the people to lift the insolvency he had led France into in backing the Americans against his old foe.  The question of foreign wars was all that more personal in the Middle Ages because a paramount duty of a feudal knight was to render military service to help his king in his wars.

The slide of King John into what we now know would become a civil war and his death may now be seen to have started with his loss of his French lands in Normandy.  He in substance deserted a campaign that he had been conducting there.  One contemporary source said that he skulked his way back to Canterbury.  He complained of the treachery of his Norman barons, and set about planning his return.

First he had to secure England.  Everyone in England over the age of twelve was required to swear an oath of fealty, and then an oath to observe a statute of common defence.  Then he invented a new tax.  (Prime Minister William Pitt would introduce a new tax many hundreds of years later solely for the emergency of dealing with Napoleon.  It was called a tax on incomes.)  John claimed a thirteenth of the wealth of his subjects.  It was like a Mormon tithe.  He tried to dress it up as a feudal ‘aid’, but this was a tax, and a hated tax.  It may have been taken with the ‘counsel’ of some barons and bishops, but they did not represent the realm.

The Thirteenth was a great success economically, but in our terms it would be seen as a direct charge on the wealth of those whose support the king needed to govern.  And it was not levied under any custom or precedent.  Looking back now, we can see what will become a familiar pattern of the dependence of the crown on wealthy subjects for money alternating with the resistance of those subjects to the crown.

In November 1213, the sheriffs were ordered to send four knights from each county to assemble at Oxford on the feast of All Saints ‘to speak with us’ – the royal plural – ‘concerning the affairs of the realm’.  Here is a king driven to call in the notables of the realm to give him counsel – and most importantly, to agree to give him money.  It is a fate that would await each of Charles I and Louis XVI, but in each of their cases, the process proved to be terminal.

The knights were to attend armed – John needed to assess his military strength.  Medieval politics were at once more personal and demonstrative – a king was only as good and strong as his results were – but here you can see the germ of a parliament and its eventual victory over the crown by achieving control of revenue.

Resistance was mounting, especially from the barons up north.  Many shires refused to account to the king.  The barons then did something very English.  They went back to look for a precedent.  They got hold of the coronation charter of Henry I way back in 1100.  They now had Stephen Langton on side.  On a high altar, all men swore an oath to go into open rebellion against King John unless he confirmed the liberties set out in that charter.  That charter had begun by bemoaning the heavy exactions that had been laid on the kingdom, but these oaths would be echoed in the Tennis Court Oath sworn by members of the National Assembly at Versailles in 1789.  Other coronation charters were included in the dossier and translated into French so that they could be understood by the barons.  This was high level PR, but if there was a deal to be cut with the king, the barons would have lots of precedents.

Then John played the Holy Land or Jerusalem card.  He agreed to take up the cross and join the crusade.  Innocent III was thrilled to bits at this display of patent piety– but he was also enraged by anyone who might stand in the way of King John – which, at the end of 1214, included a large part of the English people, and what looks to be a clear majority of those with any clout.  In a letter written after the Charter was made, Innocent said that the rebel barons were ‘undoubtedly worse than Saracens, for they are trying to depose a king, who it was particularly hoped would succour the Holy Land.’  We need not pause to inquire whether it occurred to the Holy Father that this unrepentant rat of an English king could not have given a hoot for the Holy Land.  (We know that Shakespeare had a very measured view about the motives of English kings and the Crusades.)

The most recent biography of John, by Professor Stephen Church, published this year (1215), and from which a lot the historical detail of this note is drawn, says:

It is a fundamental aspect of the politics of 1215 that each of the parties was attempting to pursue its objectives through legal means.  Neither side wished to be seen to be acting illegally, and as a result, both acted cautiously.

We need to put much more weight on the second proposition than the first.  They were after all approaching that settlement, by agreement rather than force of arms, which would found the ideas leading to what we know as the rule of law.  That result was far from inevitable, but if you think that there is an inherent impossibility in a subject lawfully rebelling against his king under arms, hold your judgment a while – because that is just what John would be driven to agree to.

Professor Church is plainly right that neither side wanted to get caught going outside the law, and he here touches on an attribute that is part of the English genius for politics – the ability to rewrite history to suit their ideas of legality, and leech the story of revolution or other violence.  It is a facility shown by a nation whose lawyers were brought up on two things – precedents and fictions.  You just had to blend the two together – seamlessly, and with a straight face.

Innocent III was not so inhibited.  He ordered the barons to desist from threatening to use arms against their king, and he directed Langton to watch his back and to settle the dispute.  The barons, and the rest of England, were under no illusion about what side the pope was on.  He now claimed to hold John’s title to England.  Any suggestion that the barons could look to the pope for independent arbitration would have been laughed at.  The pope was moving to put them outside of at least ecclesiastical law.

Remember that the barons now had sworn to act together.  This is what the law would later condemn as a combination or conspiracy, and was not dissimilar to what Lincoln and the Union faced with the Confederacy.  The pope was escalating the dispute.  The barons therefore formally repudiated their homage to their king.  They said that they owed him no obedience at all.

This was then the equivalent a party to a contract now saying – you have by your conduct repudiated our contract and shown that you will not honour it: I shall not ask the courts to hold you to your contract; rather, I shall accept your conduct as bringing our contract to an end; as a result, I no longer have any obligation to you under that contract; I am free to make whatever alternative arrangements I see fit, and to hold you accountable for any damage that I suffer in that process.  That law was at least five centuries away in the future, but people did not have to wait for that to say that you cannot hold me to my promise if you have said that you will not keep yours.

The barons enlarged their combination or confederacy by entering into a sworn association with the people of the city of London.  This is important because it suggests that the barons were not just fighting and negotiating for their own particular rights and privileges.  They would claim in the Charter itself to speak for all free men in England.  The phrase ‘class war’ is slippery at the best of times, but it might be almost completely useless in trying to assess the effect of the Great Charter.

A very dangerous stand-off led to two documents, one called the Unknown Charter and the other the Articles of the Barons.  These in part dealt with the kind of issues that arise in a truce or cease-fire – like promises of safe conduct between parties who did not trust each other at all.  One said that ‘King John concedes that he will not take a man without judgment, nor accept anything for doing justice and will not do injustice.’  Could anything be wider – or more simply breached?

Another clause said that ‘if the burden of any army occurs, more may be taken by the counsel of the barons of the kingdom.’  Well, they would have to wait until 1689 to get that locked in.  Elsewhere, John promised that he would not move against the barons while talks were going on, and that he would only proceed against them ‘by the law of our realm or by the judgment of your peers in our court.’  It looks fair to say that most of the jurisprudence of the Fourth and Fourteenth Amendments in the U S derives ultimately from wording thrashed out by warring barons and a regal rat so that they could, as the Mafia say, meet to make the peace at a meadow on neutral ground called Runnymede.

It looks like the Charter was formally agreed to by proxies on 15 June 2015, but Professor Church says that the vital giving of homage did not take place until 19 June when the king authorised the taking of oaths by the barons who were to be members of the committee that we will come to.

If there was any form of reconciliation, it did not last – on either side.  The peace was as short-lived as the compact of the peace has been long lived.

IV

The immediate problem was the continued interference by Rome.  The pope believed that everyone in England was under him.  King John, being a rat, straight away complained to this foreign potentate that he had executed the Charter under duress.  Of course he was under duress.  There was a war going on and the barons had turned up armed.  If you are a king with no standing army, and all your best soldiers are against you, your options are limited.  It is said that the papal representative, Pandulf, who takes some stick from Shakespeare, had denounced the Charter on the ground that the barons had violated its terms, but in his bull Etsi carissimus, the Holy Father took a more lofty line.

The Bull records the interdict and excommunication against King John.  It says that John had had a change of heart.  The English king had granted his kingdom – and Ireland – to the Church of Rome.  He had taken an oath of fealty to the pope, and promised a yearly tribute ‘and is making magnificent preparations to go to the aid of the Holy Land.  But Satan has stirred up the Barons of England against him.’  (The spin people would probably now advise the pope against referring to a financial ‘tribute’ – suspicious minds might sniff protection money, or just a plain bribe.)  The Bull finds as a matter of fact that the Charter was obtained by violence, and it goes on:

We refuse to overlook such shameless presumption which dishonours the Apostolic See, injures the king’s right, shames the English nation, and endangers the Crusade….Almighty God, Father, Son and Holy Ghost, and by the authority of Saints Peter and Paul His apostles, we utterly reject and condemn this settlement.  Under threat of excommunication we order that the king should not dare to observe and the barons and their associates should not insist on its being observed.  The charter with all its undertakings and guarantees we declare to be null and void of all validity forever

The barons may have provoked this reaction, not just by the security clause, which involved real money and real estate, but by the high terms that they put in their preamble –‘through the inspiration of God, for the health of our soul and the souls of all our ancestors, for the honour of God, and the exaltation of Holy Church, and for the betterment of our realm…’

We see that when the pope came to list his grievances, the first was the dishonour to the Holy See.  Then came King John’s right – then the shame to the English nation.  On the other hand, the Catholic Encyclopedia (On-line) takes no small view of the position of Innocent III.  These are obviously large issues on which opinions may vary.  ‘Innocent could not as suzerain of England allow a contract which imposed such serious obligations on his vassal to be made without his consent.  The pope therefore declared the Great Charter null and void, not because it gave too many liberties to the barons, and the people, but because it had been obtained by violence.’  And, we might add, the Charter might have impeded the violence that the Church of Christ was intent on inflicting in the Holy Land, for which the splendidly reformed King John had been making such magnificent preparations.

If we put to one side religion, a course which in this instance is both proper and safe, we are left with political issues.  In truth, we are left with the ultimate constitutional issue: who is in charge here?  A foreign power sets aside a ‘settlement’ of ‘the English nation’ – the term ‘settlement’ is that of the pope – but the English do not seem to have taken much notice of the pope.  The Charter was issued and reissued over the generations until it acquired the standing of a ‘sacred text’, and it remains on the statute books of the colonies to this day.

King John’s standing has not improved since his death shortly after these events.  The barons would hardly have posed as freedom fighters, but their struggle for the various charters probably helped secure their position in a chamber of peers in the body that would be the main instrument in reforging the constitution of England so as to repatriate the Anglican Church and embed it securely in England safe from any further foreign ecclesiastical intervention.

V

A charter may be an instrument in which the sovereign recognizes rights or one which records an agreement between people.  Magna Carta does both.  This charter settled a dispute and each side gave undertakings that were intended to be legally binding.  That is what we call a contract.  The barons swore that they ‘will faithfully observe all that has been set forth above’ and the king undertook not to ‘procure from anyone anything whereby any of these concessions and liberties may be revoked or diminished.’  That is emphatically and definitively the language of contract.

The king may have wanted to put the document forward as a unilateral grant, but here we have a document entered into to settle a dispute that contains mutual promises – and rights if one side does not keep those promises.  These are all marks of a bilateral contract.  Yet English historians and philosophers have been curiously reticent about this.  We get a grant, a treaty, a declaration of right, a constitution, England’s first statute, or forma pacis.  It might be all those things and a contract too.  But whatever label you put on it, Magna Carta is the most significant constitutional compact in history.

What did Magna Carta say?  As ever with the sources of English law, it is not what people meant, but what they said – and, just as importantly, what others in a position of authority have held as a matter of law is the legal effect of what they said.

At the risk of being tart, the real significance of the Charter was that it happened at all.  The king had had to negotiate the terms on which he held the crown.  It may not have mattered so much what those terms were – what mattered was that he had to admit that he was there on terms at all.  It would be hard to say that you rule by divine right when you settle the terms of your appointment with your magnates.  We should, however, note some parts of the text.

The barons were too smart to make themselves the only beneficiaries of their negotiations with the King.  The vindication of the Church may or may not have been a veneer, but the class of beneficiaries of the Charter is wide.

You can divide the Charter into clauses dealing with feudal grievances, trade, central government, and limitations on arbitrary power.  Churchmen, lords, tenants, and merchants are separately provided for.  The beneficiaries range from widows to the City of London to God.  Indeed, God is the first nominated beneficiary.  The first and last clauses enjoin ‘that the English Church shall be free.’  The Latin is ecclesia Anglicana.  This then meant that the English church should be left free by the English crown.  It refers back to the sad affair of Beckett.  In time, it might acquire another meaning, not free from Westminster, but from Rome.

The Charter starts off, as was customary, with greetings from the king to all parts of the civil and religious hierarchy and, finally, ‘faithful men.’  The preamble says that it is ‘for the betterment of our realm’.  Article I refers to ‘the conflict that arose between us and our barons’.  (Article 51 refers more frankly to the coming period ‘after the restoration of peace’.  The king will remove all alien knights and mercenaries ‘who have come with horses and arms to the injury of the kingdom’.)  Article 60 was necessary to give a feudal spread to the grant of liberties to the people – it stipulates that ‘all men of our kingdom, both clergy and laity, shall, insofar as concerns them, observe [these liberties] toward their men.’  In other words, the benefits and liberties granted in the Charter were to be passed down the chain.  Some astute lawyers were involved in drawing up this document, and they were not acting solely in the interests of the barons.

Article 14 is vital.  It is about money.  It provides for what is to happen ‘in order to have the common counsel of the kingdom for assessing aid.’  ‘Aid’ there is the feudal word for tax.  To get ‘counsel’ on tax, the king will summon the first two estates, the clergy and the nobility, and when that summons has been made, ‘the business of the day shall proceed according to the counsel of those who are present.’  Those two estates will in time become three, and the requirement that the king ‘have the common counsel’ will harden into a requirement that the king get a statute from his parliament, because here is part of the history of parliament.  This provision then will be the lynchpin of the whole dispensation, since he who controls the money controls the game.

While we say that Magna Carta is a constitutional settlement, it says not so much about government itself, but a lot about the rights of people, and especially the administration of justice.  This is typical in English law.  For example, Article 45 is of interest to those progressive Law Officers who think that it is a good idea to appoint as judicial officers those who do not know what they are doing.  It provides that judges shall be appointed from ‘only such men as know the laws of the kingdom and well desire to observe it.’  Article 55 deals with ‘all fines which have been made with us unjustly and contrary to the law of the land…’  How often do you see a government admitting, in writing, that it has been operating unjustly and against the law?  Article 50 is altogether more personal.  It names eight men of distinctly French sounding names, and says that we ‘will utterly remove from their offices’ the relatives of those people ‘so that henceforth they shall have no office in England.’  Au revoir, mes amis.  We will have no nepotism for those over the water.  Article 59 even extends to the king of the Scots the benefits given to the barons of England.

But the Charter is remembered and still invoked for two articles on the administration of justice.  Articles 39 and 40 are as follows:

  1. No freeman shall be captured or imprisoned or disseised [deprived of land] or outlawed or exiled or in any way destroyed, nor will we go against him, or send against him, except by the lawful judgment of his peers or by the law of the land.
  2. To none will we sell, to none will we deny or delay right or justice.

You can see the seeds of these clauses in the Unknown Charter or the Articles of the Barons, but these words were meant to be etched in stone.  They are part of our legal life blood.  You might expect to find in a prayer book the phrase ‘nor will we go against him or send against him.’  If you want to know whether the original has the same lapidary quality, Article 40 in Latin reads: Nulli vendemus, nulli negabimus, aut differemus, rectum aut justiciam.  You will see immediately that Article 40 is not limited to any class of person at all, but is as general as possible, and sets obligations by reference to both right and justice. 

Article 39 is no less than the foundation of what we call the rule of law.  If the English people had only given Article 39 to the world, they would still have our gratitude.  For example, when nearly five centuries later, the French people rose up against the arbitrary powers of the Bourbons, one of their major grievances, extending across all classes, was that a French king could lock up a Frenchman indefinitely by the simple administrative expedient of issuing a lettre de cachet.  The king could just go against or send against his subjects in his own name – and he did so by saying ‘for it is our pleasure’ (car tel est notre plaisir).  That is just the kind of government action that Article 39 expressly outlaws.  What this clause says is that liberty and property are not to be interfered with without due process of law.  The phrase ‘due process’ enters into later versions of the Charter, and ‘due process’ is the concept that underlies much of the Bill of Rights in the United States – and our administrative law.

You can test the weight of these clauses by asking this question.  Is it possible to imagine one of Vladimir Putin’s KGB henchmen uttering more than a grunt in the face of a mention of either of them before dropping off another corpse at the gates of the Kremlin?

If you are asked to look at a contract to see who was calling the shots during negotiations, you will be very interested in the default clause or the security provisions in the contract.  If you borrow money from a bank to buy a house, and you default on repayment, the bank can sell your house.  If you borrow money for a company and default on repayment, the bank may send in a receiver over the business.  Most of the time, the bank will not need to get a court order to assist it to enforce its rights.  It will just rely on the terms of the contract of loan.  That contract sets out the law that the parties have said will apply to their contract.  There are difficulties about suing kings even now – what form of security, then, did the barons get from King John in 1215?

They favoured the receiver model.  They would not need a court order.  Article 61 refers expressly to security (securitas) and it is in horrific terms that not even the most over-mighty and overbearing corporation, outside of Russia, would dare to seek now.  It provides that if the king defaults, the barons can give him a notice to remedy that default.  If he does not, a committee of twenty-five barons ‘together with the community of the entire country, shall distress and injure us in all ways possible – namely, by capturing our castles lands and possessions and in all ways that they can – until they secure redress according to their own decision, saving our person and the person of our queen, and the persons of our children.’  Well, that is fine for the royal family, but what about the poor downstairs maid when that awful Robert de Ros, neither alone nor palely loitering, comes thundering over the drawbridge, leaving his chain mail behind him, in one of his beastly marauding moods?

That clause was no doubt put to the pope as evidence of duress.  It never appeared again in later versions.  It looks uncomfortably like a licence to rebel, or a recipe for civil war.  But the English never lost their taste for being hard-nosed with royalty.  The Bill of Rights of 1689 is both more subtle and more terminal.  The people say to their king – you cannot have a standing army (except on our terms) but we have the right to bear arms – if you and we fall out, and there is a fight, guess who will win.

VI

At about this time, speaking very roundly, there may have been something in the air in Europe.  We might now refer to it as a European spring.  The Sachsenspiegel appeared in Low German in about 1220.  It offered the following release from feudalism in terms not so far removed from our present law of contract: ‘A man may resist his king and judge when he acts contrary to law and may even help to make war on him…Thereby, he does not violate the duty of fealty.’  Hungary produced a Golden Bull in 1222 that said ‘no noble was to be taken or destroyed for the favour of any powerful lord unless he had first been summoned and convicted by judicial process.’  The effect of the due process clause in the Great Charter is obvious.  The default clause conferred ‘authority to resist and contradict us…without taint of infidelity.’  In the Spanish Privilegio de la Union, of 1287, the Crown pledged its good behaviour by surrendering castles and acknowledging that the people could choose another king if the incumbent contravened the privileges.  You can find similar themes in the Assizes of the Kingdom of Jerusalem, the privilege of the Brandenburg nobles, the Brabantine Charter of Cortenberg, the Statute of Dauphine, and the Declaration of the Communes of Languedoc (1356).

The theme was constant.  People were searching after an agreement that could bind their rulers.  Yet these efforts just petered out on the Continent.  Only in England did the quest take root and go on.  Why is this?

You cannot try to make a constitution in a vacuum.  You need at least two things – a body of existing law that commands the assent if not the respect of a majority of the people; and a body of judges to interpret and enforce those laws.  It looks like only England had those qualifications for a long time.  Remember that England was developing the first profession outside the church.  It was this profession – including the judges in that term – that would celebrate and nurture Magna Carta so that it would become ‘with all its faults a kind of sacred text, the nearest approach to an irrepealable fundamental statute that England has ever had.’  The reference to sacred text from the sober legal historian Maitland tells us something.  In order effectively to nurture a constitution, you need some kind of faith based on experience.  We call it tradition.

Less than a hundred years after the Great Charter, a man called Bracton published the second text-book on English law,  It was called On the Laws and Customs of England.  You can still buy brand new prints of the four volumes in a testament to American scholarship.  Maitland thought it was the ‘crown and flower of English jurisprudence.’  Its most famous line, in English, is: ‘The king is below no man, but he is below God and the law; the law makes the king; the king is bound to obey the law.’  It would take hundreds of years to nail that credo down, but it comes from the Great Charter, since, as Maitland also said, ‘in brief it means this, that the king is and shall be below the law.’

Straight after the line quoted, Bracton went on to say: ‘Let him therefore bestow upon the law what the law bestows upon him, namely rule and power, where rex rules rather than lex.  Since the king is the vicar of God, and that he is under the law appears clearly in the analogy of Jesus Christ, whose vicegerent on earth he is…’  You do not often see God being invoked to diminish the standing of kings.

When lawyers later referred to the Charter, which they did often, they stoutly adhered to the fiction that it had not said anything new, but had only restated ancient liberties.  If nothing else, the Charter made clear that the future of English law was with royal justice and that therefore there would be a law common to the entire nation.  By that quirk of history, King John continued the work of the great Henry II.

VII

We have seen the seeds of the idea of parliamentary control of revenue in the Charter, especially Article 14, and in the documents leading up to it.  Magna Carta looked forwards in at least two other ways.

First, we saw the intervention of a foreign power – the papacy – in the affairs of England in ways that now look to us to be fantastic.  This suited the weak King John who could change sides just like that, and form and renege on alliances at will.  But one day there would come a strong and arrogant English king who would not be pushed around.  If the pope got in his way on an issue of national importance – such as the succession to the throne – the whole edifice could easily come crashing down.  This is just what happened with Henry VIII and his divorce.  His pope had a conflict of interest, and could not oblige the English king with the divorce that he needed to secure the succession.  And by that time, the English parliament was secure enough to legislate for Home Rule for England and the constitution of that nation and its national church.  The revolution had next to nothing to do with religion.  It was about self-government and its effects have been sadly underestimated by legal historians.  Just look at those nations in Europe that did not nationalise their church or cut free from Rome.

By the time that Shakespeare wrote King John, the conflict between the English crown and the Church of Rome had been resolved, adversely to Rome.  Shakespeare put into the mouth of King John the following rebuff to the Pope.

What earthy name to interrogatories

Can test the free breath of a sacred King?

….

Tell him this tale, and from the mouth of England

Add thus much more that no Italian priest

shall tide or toll in our dominions:

But as we, under Heaven, are supreme head.

So, under him, that great supremacy. (3.1, 74-83)

Those words can still get a frisson from an English audience, although, in fairness to the author, he was very generous in a later play in his treatment of the first innocent victim of Henry VIII, Catherine of Aragon – and if John had had the force of character of Henry, as well his downright nastiness, the constitution may have taken much longer to take shape.  The reference to ‘supremacy’ takes us to the act that declared ‘this realm is an empire’ – it could have no superior on earth.

The second way that our story looks forward is this.  Tucked away in the wording of the security clause is an expression that contains the germ of another idea, and which shows how universal was the liberation extended by the Charter.  The right of entry is given to a committee of barons ‘together with the commune (or community) of the entire country’ (cum communia totius terrae).  Communis is a very, very potent term here (as would be communio in a church).  When the French monarchy was brought down in and after 1789, the government of the country for a large part came to rest with the commune of Paris, especially after the 10 August coup of Danton.  The revolutions that shook the great cities of Europe in 1848 were centred in the communes.  A movement in favour of revolutionary change across the entire world to free the masses of their chains, which would cause so much misery in the twentieth century, was called the Communist Party after these communes.  Yet here we have English barons giving these communal rights to the yeomen and all the freemen of England way back in 1215.  It was many centuries ahead of its time.

We saw that at a critical phase, the barons swore an oath with citizens of London.  Town and country agreed not to make a separate peace.  Here we see the burgers – later, the bourgeoisie – coming together with an oath of mutual support.  The communal oath of the burgesses in France at this time put Marc Bloch at his most lyrical.

It was sworn association thus created which in France was given the literal name of commune.  No word ever evoked more passionate emotions.  The rallying cry of the bourgeoisie in the time of revolt, the call for help of the burgess in peril, it awakened in what were previously the only ruling classes prolonged echoes of hatred….The distinctive feature of the communal oath, on the other hand, was that it united equals…..It was there in the commune that the really revolutionary ferment was to be seen, with its violent hostility to a stratified society.  Certainly these primitive urban groups were in no sense democratic.  The ‘greater bourgeois’, who were their real founders and whom the lesser bourgeois were not always eager to follow, were often in their treatment of the poor hard masters and merciless creditors.  But by substituting for the promise of obedience, paid for by protection, the promise of mutual aid, they contributed to the social life of Europe a new element, profoundly alien to the feudal spirit properly so called.

These are indeed swelling themes, and it may be that this very great French historian of the medieval world touched here on the essence of the French Revolution – taking away obedience to superiors bought with protection and putting in its place the promises of mutual aid exchanged between equals.  The problem was that trying to fuse the movements of a millennium into one generation produced a fission that still endures.

VIII

On Bastille Day, 1940, France was falling and England was facing destruction, a worse destruction than that of 1066.  The main adviser or minister to the King of England – the leading man in what had come to be called the Parliament – addressed the English nation.  During his speech, the English leader – he was by then called Prime Minister and his name was Winston Churchill – said:

Here in this strong City of Refuge which enshrines the title-deeds of human progress and is of deep consequence to Christian civilization ….This is no war of chieftains or princes, of dynasties or national ambition; it is a war of peoples and causes…This is a War of the Unknown Warriors.

The Great Charter is one of those title-deeds.  It is up there with, and it prefigures, the American Declaration of Independence and the French Declaration of the Rights of Man.  It was an essential part of a progress that would, against the odds, enable England to defeat the enemy it then faced, Adolf Hitler and the Third Reich.  More importantly, because of that progress, England never produced a Hitler.  You cannot allow someone to be above the law when you have signed up on the principle that we are all under the law – and we are still groping after the idea that we should all be equal in the eyes of that law.  Equality looks to be as far away as ever.

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