The story of English law – Part 3

An essay in nine easy tablets

Some years ago, I wrote a book called ‘The Common Law, A History’.  I wrote it mainly for lawyers, in part because too many were admitted to practice without having been taught the history of the law.  That in my view is worse than sad.  This essay is not a précis of that book.  It is an introduction written for the general reader.  People at large should have an interest in the history that underlies and underwrites our way of life.  It also represents the bare minimum of what law students should be taught.  The alternative may resemble giving a ticket to a doctor who has not opened Gray’s Anatomy.  I will publish the essay by nine consecutive posts on this website.  I hope you get some of the enjoyment in reading it that I got in writing it.

3 The rule of law

In the events surrounding the fall of the Bastille, the government could lock away its opponents simply by giving them a letter saying that the king willed it (a lettre de cachet; Depar le Roy, Car le Roy le veult).  It was a symptom of the absolute power of a king in a monarchy that was said to be unlimited.  The king was said to be absolved from all the laws – after the model of Roman emperors.  (Indeed, at one time Louis XVI expressed his exasperation that his mere say-so did not create a law.)  The person seized had no judicial remedy.  He could just rot in jail like the Count of Monte Christo.  Rulers in other parts of Europe exercised or claimed similar powers.  That had not been the case in England for centuries.  And this was so because of two instruments of their laws that we now come to.

When the Mafia dons got together to make the peace in The Godfather series, things got nasty.  Things had got very nasty between King John, who would be roughly handled by Shakespeare, and his barons before they got together to make the peace in 1215 at a place called Runnymede – the peace of which is now blasted by activity at the nearby Heathrow.  They had been engaged in a form of civil war.  This charter – the Great Charter, or Magna Carta – contained the peace treaty or terms of settlement between the parties. 

The compact of the parties contained mutual promises and undertakings given in the most solemn manner known to the law and God, which were intended to be legally binding on the parties, and which contained contractual rights of remedy if at least one party failed to observe his side of the compact.  Put to one side what the law then said or provided for such undertakings – this was what we call a contract.  That statement is unequivocal. 

The Charter set out the terms on which the king held the crown and would rule England.  It was like the service agreement of a hot shot CEO of a huge public company like BHP or Shell.  It would be supplemented nearly 500 years later by another service agreement between the people and the crown that would be called the Bill of Rights. 

When Winston Churchill referred to the great title deeds of western civilization, he would certainly have had these two in mind.  But the first is clearly numero uno.  It is for me far and away the most significant tablet of the law ever made.  The Americans probably share that view by the reverence that they pay to it at its shrine in the Smithsonian in Washington.

Much in the English fashion, they would say that the Charter said nothing new – it just confirmed ancient liberties or freedoms.  That proposition suggests what might be called the Continental view – that freedoms or liberties have to be granted to us by government.  We take the contrary view – we know that we are free to act unless and until a government, after due process, makes a law that infringes that freedom – and, if necessary, the government is held by a competent court to have acted within its constitutional powers in doing so.

So much of the history of political evolution has consisted of people on one rung of power curbing the powers of the person on the next rung up – and then slamming the door on all those under them, because they do not want to see their power being diluted by being shared with those they see below them.  That is just why the American, French and Russian Revolutions miscarried.  It would take the English more than 200 years to spread power across the people after what they call their Glorious Revolution.

This was not the case with the barons. They expressly stipulated that all free men would have the benefit of the Charter, and they also expressly subjected themselves to those obligations in favor of those under them that they had extracted from the king in their favor.

Any constitutional document is only good as it is found to be over time.  The most important issue is: Does it work? 

This Charter would become the legal Bible of the English – something you went to for binding authority in a crunch issue.  Whatever they may have meant in medieval England, two clauses would come to have the status of holy writ.  ‘39. No free man shall be taken or imprisoned or diseised [deprived of property] or outlawed or exiled or in any way ruined, nor will be go or send against him, except by the lawful judgment of his peers or by the law of the land.  40.  To no one will we sell, to none will we deny or delay right or justice.’  It sounds just as good in Latin.

Here is ‘due process’, a phrase that would come into a later version of the Charter, and which is a lynchpin of the U S Bill of Rights.  The king could not go or send against you by a mere letter just because he felt like it.  He had to do so ‘by the law of the land,’ and by ‘the lawful judgment’ of the peers of the citizen affected.  From that time on, a lettre de cachet was out of the question.  And you can easily imagine the fillip to trial by jury as it evolved – and which it is still felt to be nigh on a sacred right in the U S.

Well, the barons knew that they were treating with a rat.  They could hardly sue the king in his own court.  How could they protect themselves when he ratted? 

If you borrow money on your house, the bank will sell you up if you default.  If you are a company, they will send in receivers and managers to manage the business.  The barons chose this option (clause 61).  If the king defaulted, 25 barons could go on to his castles and, for the want of a better term, raise hell – ‘ourselves and our queen excepted.’ 

Vladimir Putin might blanch at that.  It shows just how much power that the barons had over John.  And being a rat, he beetled straight off to Rome and got the deal annulled.  (We will come back to that foreign intervention on an issue of English sovereignty.) 

That clause was not in later versions of the Charter, which got to be regularly reenacted, and we will see how the English dealt with the issue of enforcement in the Bill of Rights.  But the thing about the Charter is that it happened.  The king had had to negotiate and the contract that resulted set out the terms on which he held the crown.  From then on, kings might romance about Divine Right, but when the king was only there by the leave if his subjects, that was just moonshine.  Richard II would not be the only king the English deposed for forgetting that.

The established doctrine would become: the king was under the law because the law made the king.  That doctrine was incomprehensible to the Bourbons, but zealous lawyers brought up on the faith of Magna Carta would wave it in the faces of the power-hungry Stuarts like mad mullahs with the Quran before an alarmed Ayatollah.

Magna Carta was not a declaration of independence made by the people, but it was an admission by the king of his dependence on the people.  It was the communal equivalent of the discovery of the wheel.  Or even stealing fire from the gods.  Prometheus would have loved it.

Another legal process had been begun before all this.  You will by now not be surprised to learn that the process came first and the rationalization later.  First the writ; then the theory – and the congratulations. 

The writ was called habeas corpus.  That Latin phrase means ‘you have the body.’  If someone is taken into custody, they can serve the custodian with such a writ, and that person must then account to a judge by saying under what law and by what process the person is held.  The writ would be refined and enlarged and secured by statute over the centuries so that it became part of the English constitution.  It was on the on the return of one such writ that Lord Mansfield ordered the release of a slave on the footing that such a condition was against the common law of England.

So, here at last is the chance for civilization.  No one is above the law.  All are equal before it.  And government can only go or send against you after due process and under the law. 

Magna Carta and old English acts about habeas corpus are still part of the law of Victoria.  One justice of its Supreme Court is rostered to hear urgent applications.  To this day in Melbourne, all such business of the court stops immediately if counsel informs the court that they have an issue involving the liberty of the subject.

That, to put it softly, is quite some inheritance.  And you notice it immediately when you step off a plane in a place that has never known anything like such laws.  It is chilling – like being launched into space and losing all gravity and being deprived of air.

Finally, a couple of other acorns fell from the Charter.  Clause 14 begins ‘And in order to have the common counsel for assessing aid…,’ the king will summon his principal advisers.  Here is the germ of the idea that the king should only act on advice from those representing the people, and that he could not collect aid – impose a tax – without their consent.  That would the ground on which the English settled with those who succeeded the Stuarts. 

Then the default clause said that the barons could go against the king ‘together with the community of the entire country’ – cum commune totius regius.  Commune!  There was a word all Europe would come to marvel at and loathe or salute – in Paris in 1793, in just about every capital in Europe in 1848, and in St Petersburg in 1917. 

Then we might reflect on remarks of the great French historian, Marc Bloch, in his wonderful work, Feudal Society: ‘In feudal society, the oath of aid and ‘friendship’ had figured from the beginning as some of the main elements of the system.  But it was an engagement between inferior and superior, which made the one the subject of the other.  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.   The originality of the latter [feudal] system consisted in the emphasis it placed on the idea of an agreement capable of binding the rulers; and in this way, oppressive as it may have been to the poor, it has in truth bequeathed to our Western civilization something with which we still desire to live.’ 

Those comments are French, and Gallic fervor can unsettle the English, but an occasional shot of it does them no harm.

Legal history – Magna Carta – rule of law.

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