Outside the law

11/06/201511/06/2015 / Geoffrey Gibson / Leave a comment

You can trace some strong threads in the long history of our law. We have sought to put the law, not men or women, over all of us. We have sought to give all people equal rights under the law and to make everyone equally subject to the law. We have sought to ensure that people can be deprived of those rights only after a fair trial conducted by an independent judge, and in serious cases, a jury. We have sought to provide that any change in the status of a person should come from an agreement between people rather than by a decree from above.

Current proposals to put people outside the law, or at least some of it, by government decree rather than by a judgment of a court risk running across all those aspirations and achievements.

You can also see the kinds of argument or device that are commonly invoked to get around those principles. People are told that the nation is in danger. The French Terror was heralded by the declaration La Patrie est en dangere. The leader might be personally threatened. If the threatened leader is compared to the boy who cried Wolf, his answer is that of the con-man of the ages – Yes, but this time it’s different. Then people are told that the powers that are sought are only emergency powers for a passing crisis that will be surrendered when the crisis is passed. Finally, people are told that the good guys must not let the bad guys take advantage of their goodness.

It may help to look at some precedents.

The Greek nation is a very modern invention. There was nothing like it in the ancient world. They never got beyond city-states that warred among themselves.

In the 6^th century BC, many cities were consumed by fights between clans or classes. Dictators or tyrants arose who attempted to impose peace and order. One such dictator in Athens was called Peisistratus. He seized power and became a tyrant through a stunt that made even Herodotus smile but which would be much followed later. He appeared in the agora wounded, he claimed, by his rotten enemies who were against him as a friend of the people. He got the Hill in the assembly to vote him a bodyguard for the emergency, and then he used that bodyguard to seize the acropolis, and make himself master of the city-state. People like Mussolini and Hitler would follow the same pattern – an exaggerated threat; an emergency response, followed by a seizure of power. You see waves of the same reaction during the French Revolution.

Another dictator in Athens was Cleisthenes. He allowed people to decide whether to hold an ‘ostracism’ once a year. That way, if more than 6000 people were present, and enough bits of pottery were cast, a trouble maker could be packed off to cool off for ten years. This is what we call a safety valve. This was useful back then and represented a kind of democracy, of a very direct sort, in operation. It is rather like the right of a party or club to expel a member, but it is notorious that the exercise of such a right can lead to bad strife, and Greece itself as a nation is now looking down the barrel of ostracism from Europe.

Outlawry was known to ancient Rome, at least until early in the empire, but it became notoriously abused as a weapon in factional politics. There is ultimately likely to be something like a moral problem when a group of people decides to exclude some of the group. The moral risk is that those excluded lose out unfairly, because the majority are being judges in their own cause, or that the majority just gets narrow-minded, arrogant, and power hungry. You see it all the time in every walk of life. Too often, exclusion is the confession of moral failure and a claim to too much power.

III

In the middle ages, we see a slow shift of judicial power from God and his church to judges and juries. The shift takes centuries. As a leading legal historian said: ‘The word Churchman means today one who belongs to the Church as against others. In the Middle Ages, there were no others, or, if there were, they were occupied being burnt.’ Self-help loomed large early. A thief caught red-handed could be put to death on the spot. Gradually people came to see that the notion of the King’s peace was better and safer than revenge and the vendetta.

The King protected his peace by issuing a royal command to someone breaking it. That command was called a writ. What happened if the wrongdoer disobeyed the command? The ultimate sanction of our ancient law was outlawry – anyone could then kill the wrongdoer who was outside the protection of the law. The idea was that he who breaks the law has gone to war with the community and the community then goes to war with him. He is not merely a ‘friendless man’, but a wolf. It is like the Mafia notion that you are for us or against us. The person decreed to be outside the protection of the law was in truth surrendered to the mob, although not necessarily in the cavalier manner that Pontius Pilate handed over a young man called Jesus of Nazareth to the mob.

Over time, this barbarous extreme was replaced by the common law offence of contempt of court. It is a crime that can be prosecuted and punished subject to the law of due process. Our law has not formally dealt with outlawry for many centuries. It was in truth a confession of failure on the part of the law.

The English may or may not have invaded Ireland with papal authority, but there is no doubt that the Statutes of Kilkenny of 1366 were an expression of the racial contempt that the English then had for the Irish. They sought to impose a form of apartheid by limiting the English colony to ‘obedient shires’ and putting those beyond the Pale outside of English law. The English settlers were further protected from ‘degeneracy’ by other statutory prohibitions.

The comparison not just with apartheid but with the Third Reich is sickening – even if we have to go back six centuries. In the Oxford History of England, May McKisack said: ‘It is sometimes suggested that these famous statutes are meant to be read as a declaration of war against the Irish; on the contrary, they are to be read as a confession of defeat.’

The English did adapt the Norman form of inquisition in a way that would lead to fact-finding by a jury in a court of law – a form of trial that still preserves its pre-eminence in the U S – but they managed to avoid the horrors of the inquisition that were practised in Europe, especially in Spain. English legal historians have never sought to disguise their relief. Maitland referred to the new procedures for the inquisition introduced by Innocent III. He said that the safeguards of innocence were disregarded and that torture was freely used, to the point that ‘the common law of Western Europe adopted it’. Because, he said, the English system had not gone down the way of the Inquisition, England had avoided the impulse that ‘might have sent it down that too easy path which the Church chose and which led to the everlasting bonfire’.

The revulsion of the English for the Inquisition and inquisitorial process was a major part in the revolutions of the seventeenth century. The Inquisition used torture and played games. The Digest put the onus of proof on the accuser, as does the common law, but a well-conducted inquisition obviated this rule by holding that there is no accuser.

The French Law of Suspects has had a bad press, perhaps sometimes unfairly. The Law of Suspects of 17 September 1793 is a model of concise drafting: Clause 1 said: ‘Immediately after the publication of the present decree, all suspected persons within the territory of the Republic and still at liberty shall be placed in custody.’ Clause 2 says who are ‘suspected persons’. Well, the class includes ‘partisans of tyranny or enemies of liberty’, ‘those to whom certificates of patriotism have been refused’ and ‘former nobles’ and their families …. ‘who have not steadily manifested their devotion to the Revolution’. That is to say – anybody. It is hard to imagine a more complete ‘enemy of liberty’ than the author of this law. The law does not say if these people are guilty of any offence, or how they are to be dealt with if they are – it just says that they shall be detained, at their expense, ‘until the peace’.

The French pride themselves on the economy and style of their drafting. Flaubert used to read some of the Code Napoleon each day to warm up on for his writing. (It is impossible for a common lawyer to imagine anyone doing that with any statute ever made anywhere.) The legal drafting during the Revolution may not have received the time and polish of later documents, but it was not long-winded. Most of the decrees are short and to the point and look like they might be addressed to issues of the management of a petanque club.

Clause 3 provided that each Watch (Surveillance) Committee (known as the Revolutionary Committee) is charged with drafting for each arrondisement ‘a list of suspected persons’, and issuing warrants of arrest against them, and having seals put on their papers. The ‘commanders of the public force’ receiving such a warrant must execute the warrant and arrest the suspect immediately. Clause 4 says a committee can only order an arrest if at least seven are present, and by an absolute majority. Clause 5 says that they are to be taken first to the local jail and then, under clause 6, transferred to national buildings. Clause 7 allows the prisoners to have their absolutely essential belongings, and says that ‘they shall remain there until the peace’ (which is not defined). By clause 8, the prisoners have to bear the expense of their custody. Under Clause 9 the Committee must give a list of arrested suspects to the Committee of General Security. Clause 11 allows courts to have detained in jail those who are acquitted before them – this clause makes no express reference to such a person being ‘suspect’. That is the whole law.

Like the decree about the Revolutionary Tribunal, this decree does not say that certain acts are criminal (against the law) – rather it just empowers some people to take some action against some other people without the intervention of a court. But what is clear is that if you had been refused your Civic Card – and we saw what the Paris Commune said about this – or if your Committee did not think that you had steadily manifested your devotion to the Revolution, they could cause you to be arrested and be held in prison indefinitely – without any charge having been made or even any breach of the law alleged; without any evidence having been required, collected, or tendered against the target; and without any intervention from any kind of judicial officer whatsoever. And all at the expense of the victim.

You would for example risk being suspected and therefore arrested and held indefinitely if you called someone vous or monsieur – even though that form of address was the spontaneous habit of a lifetime formed in a customary exhibition of courtesy throughout all classes in all of France.

There is nothing in the law that says that a suspect may be executed or otherwise punished for a breach of the law – it merely says that one class of persons may be detained for the duration, or until the peace. But, in looking at Law of Suspects, we need to remember that it was an emergency measure relating to internment during and for the duration of the then equivalent of a world war that saw most of Europe intent on overthrowing the government of the French nation and assisting in the setting up of a replacement government that was almost certainly contrary to the wishes of a clear majority of the French people.

The French did, however, succumb to terrorism when they lost all decency and allowed conspiracy charges to be heard by popular courts. As time went on, hardly anyone beat the charge. The process became so much more formal and peremptory. People were dealt with in batches – the charges were ‘amalgamated’, a favourite technique of Saint-Just, and toward the end the prosecutor could invite the jury to say that they had heard enough to satisfy their consciences. Paris looked like a lynch mob hungry for prey.

In the 1860’s some Australian colonies restored a form of statutory outlawry to deal with bushrangers who were robbing and killing people at will and terrorising whole towns. The law was first passed in New South Wales as the Felons Apprehension Act and then spread to other colonies including Victoria which was afflicted by the worst of them, the Kelly gang. There was concern about the difficulty of making citizen’s arrests at common law. To those opposed to going back to medieval barbarity, the Sydney Morning Herald had the answer that we still hear today:’ ‘In our tenderness for the liberty of the subject, we are endangering the life of the subject.’

The procedure was detailed and involved judicial findings on evidence presented in court. In order to put a person outside the law, that is to make them an outlaw, the law laid down strict rules. First, there had to be an allegation on oath before a Justice of the Peace that a particular person had committed an offence punishable by death. Secondly, the Attorney General would commence proceedings against that individual by way of an information in the Supreme Court. That Court, if satisfied that the offender was at large and would be likely to resist ‘all attempts by ordinary legal means to apprehend him,’ could issue a bench warrant for that person’s arrest. The Judge then had to order that a summons be published in the Government Gazette and with the view to that process coming to the attention of the accused. The summons required the person named to surrender on or before a specified day, at a specified place, to face his trial. After the date nominated for the person’s surrender, any Judge of the Supreme Court who was satisfied upon proof by affidavit that the offender was not in custody, could declare the person outlawed. The Governor was then required to have published a proclamation to the effect that the person had been outlawed. Then a licence to kill arose if the offender was armed or reasonably believed to be armed – the offender was wanted dead or alive.

Well, they were hard old times, and the outback was scarcely policed. There were areas that looked like they were in a civil war. No one would suggest that process now. But some are suggesting other ways of putting people outside the law without anything like that level of judicial intervention or the giving of evidence in court.

VII

In England during World War II, there was a famous exchange on England’s highest court, then the House of Lords, about a wartime regulation that gave the Secretary of State the power to detain a person if he had ‘reasonable cause’ to believe that person had ‘hostile associations’. If this issue should come before a court, say on a writ of habeas corpus, should the court conclude that it must be satisfied of the ‘reasonable cause,’ or was it sufficient for the Home Secretary to say that he believed that he had reasonable cause? The majority thought that a wartime emergency provision should be applied to make it effective rather than to have it weighed down with fine legal argument. They were also sensitive that they as judges may not have had access to security information gained as part of the war effort. They accepted the submission of the government and held that the opinion of the Home Secretary was enough.

Even at the height of the war, the case caused headlines by the terms of the dissent of a very famous judge named Lord Atkin. He objected to a ‘strained construction put on words with the effect of giving an uncontrolled power of imprisonment to the minister’. He went on to say:

In England, amidst the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.

His Lordship went on to say that he knew of only one authority to justify the reasoning of the majority – and he referred to the colloquy between Alice and Humpty Dumpty in Alice in Wonderland. This remark offended the majority, but not as much as his remark that ‘in this case I have listened to arguments which might have been addressed acceptably to the Court of King’s Bench in the time of Charles I’.

Lord Atkin’s reasoning commands general acceptance today, but sensible courts make allowances for decisions taken in extreme emergency, which England plainly was when the man called Liversidge was detained, and also about the need for judges to show some respect for the separation of powers where the executive appears to be acting bona fide in issues involving security and intelligence during wartime.

VIII

We need not spend time on the descent of Russia under Stalin and Germany under Hitler into the police state. When it comes to the application of terror in France, Russia, and Germany, the abandonment of the rule of law consists in large part of creating no-fly zones for the law at each end of the process – you deny all rights to the targets and the victims, and you create not just privileges but absolute immunities for the government agents of terror. They are all outside the general law at either end.

With active help from the German Establishment, Hitler in a matter of weeks set off a moral and constitutional landslide that had taken the French years to generate. He did so largely by claiming emergency powers to deal with threats to the State, the same ruse of the Greek tyrants in the 6^th century. The Bundestag effectively took itself out of play. In July 1933, they passed a law forbidding the formation of any new parties. On 30 June 1934, Hitler relieved himself of the embarrassment of those who had got him into power, the S A, or the Brownshirts, by having them shot. In what we know as the Night of the long Knives, about two hundred people who were annoying the Fuhrer were gunned down. The destruction of Marxism warranted the toleration of terrorism. The rationale of Nazi terror might change, but not the method.

The most sickening part for a lawyer is the way that real courts were forgotten and peoples’ courts were put in their place. These ‘courts’ were to find according to law – but only insofar as it accorded with the popular will, and the public interest as identified by the regime. To put it at its lowest in our terms, the criminal law of the Reich was to be applied with equity in favour of the Reich and against the accused if the public interest required it. Again putting it at its lowest, such a notion is anathema to us.

In the case of Russia, the trappings of a police state and the absence of civil rights were in the system put in by the Soviets from the start. The people of Russia have had only fleeting contact with the rule of law or civil rights since that nation came to be known under that name.

We have seen that under the Law of Suspects, an accused person who did beat a charge could still be detained under that law, and that was certainly a course open to the NKVD or Gestapo in the very rare cases where the prosecution simply failed. The whole purpose of the revolutionary or peoples’ tribunals was to stop that kind of accident happening. Civilized legal systems say that it is better that some guilty go free rather than that one innocent person should be imprisoned; the revolutionary regime or police state takes the very opposite view – and the very words ‘innocent’ and ‘guilty’ had very different meanings for those enforcing what purported to be the laws of such regimes.

In The Russian Revolution, Sheilah Fitzpatrick said this:

Suspicion of enemies – in the pay of foreign powers, involved in constant conspiracies to destroy the revolution and inflict misery on the people is a standard feature of the revolutionary mentality that Thomas Carlyle captured vividly in the passage on the Jacobin Terror of 1794…..In normal circumstances, people reject the idea that it is better that ten innocent men perish than that one guilty man go free; in the abnormal circumstances of revolution, they often accept it. Prominence is no guarantee of security in revolutions; rather the contrary. That the Great Purges uncovered so many ‘enemies’ in the guise of revolutionary leaders should come as no surprise to students of the French Revolution.

After all, the French have a saying: Plus ca change, plus c’est la meme chose.

It is not surprising, then, that all Hell broke loose in England when its highest court, then the House of Lords, decided that it was time to reinvest the common law of crime with a kind of equity that would make behaviour that they thought was not in the public interest punishable as a matter of law even though that behaviour had not been declared criminal by the law before then. And all for nothing, as it now seems to us. The case was about contact numbers for call girls in phone books. We are used to massive advertising for anything about sex, but in 1962, some of the Law Lords were so offended by the grossness of this immorality that they decided to resurrect a common law offence of a conspiracy to corrupt public morals. They apparently wanted to reserve some kind of law making power to the judiciary to deal with cases that they thought had improperly slipped through the net.

Putting to one side that the offence found by their Lordships uncomfortably resembles one of those for which Socrates was put to death, a leading jurist of the time, H L A Hart, immediately compared the decision to German statutes of the Nazi period which condemned anyone who was deserving of punishment according to ‘the fundamental conception of a penal law and sound popular feeling.’ It is after all fundamental for us that people can only be dealt with accordingly to law – as it was stated at the relevant time.

The title of the USA Patriot Act is a ten-letter acronym that stands for ‘Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001’. It was passed with alarming speed and very little consideration or dissent after one successful terrorist attack. Some of it sunsetted the other day in a blaze of controversy that followed the actions of a highly placed government officer, Edward Snowden, who illegally released a load of secret files for at least the purpose of embarrassing the government. This change in the law was obviously made in a hurry and in what appeared bona fide to be a crisis, but whether the sunset provisions work is another question. On any view, the US has brought problems on its own head through this law. Guantanamo Bay is another matter altogether, but not now widely seen as a blessing.

The following note comes from a memorandum on the website of the House of Commons Library of January this year.

In recent years there has been an increasing use of powers to deprive people of their British citizenship and withdraw British passport facilities, particularly in respect of those who may be involved in fighting, extremist activity or terrorist training overseas.

Under section 40 of the British Nationality Act 1981 (as amended), an order to deprive a person of their British citizenship can be made if the Home Secretary is satisfied that:

it would be conducive to the public good to deprive the person of their British citizenship status and to do so would not render them stateless; or the person obtained their citizenship status through naturalisation, and it would be conducive to the public good to deprive them of their status because they have engaged in conduct “seriously prejudicial” to the UK’s vital interests, and the Home Secretary has reasonable grounds to believe that they could acquire another nationality; or

the person acquired their citizenship status through naturalisation or registration, and it was obtained by means of fraud, false representation or concealment of any material fact.

In the second and third scenarios, a person may be deprived of their British citizenship even if this would leave them stateless. “Conducive to the public good” means depriving in the public interest on the grounds of involvement in terrorism, espionage, serious organised crime, war crimes or unacceptable behaviours.

The power to deprive a naturalised person of their citizenship status and leave them vulnerable to statelessness due to “seriously prejudicial” conduct derives from section 66 of the Immigration Act 2014, which came into effect on 28 July 2014. Some commentators have questioned how this controversial power will be applied, and whether it undermines the UK’s international obligations.

The memorandum is not happily expressed, but I suppose that the legislation is not either. If the note is correct, a government minister, without intervention by a court, can act to deprive people of their rights. The phrases ‘conducive to the public interest’ and ‘seriously prejudicial’ are, frankly, frightening. I could not find my way through the statutory maze, but it looks like you might trigger ‘conducive to the public good’ by behaviour that is ‘unacceptable.’ Only Heaven knows what Professor Hart may have made of this kind of law in the days of our lost innocence.

What do we learn from these precedents?

Beware the ruler who says that the law must give way or change to face an emergency because the state is in peril, or one who says that we have to surrender some of our rights before we lose all of them. You do not have look at the monsters of the 20^th century. Just look at the tricks of Peisistratus. He got thrown out and he then got back in by a device that Herodotus said ‘was the silliest that I can find on record.’

Beware of a ruler who wants to skip the courts to deal with a marked or branded group within the community. Be especially wary of any such ruler who appears to have personal or political motives for the rule change, or who, for whatever reason, does not appear to understand or respect the system of law that we have inherited. And just smile when they say that this time it’s different, or that they only want the change once and for a short time.

But do not smile if they say that they only mean good and that no ill can come from that. The two greatest explosions of human rights in the history of the world led almost immediately to two of the worst reigns of terror the world has seen.

And try to enlighten those trusting souls who think that this small change will not matter because it is not directed to them but to others who are, frankly, not all that attractive, and because in any event people of sense and goodwill will be able to rein the ruler back in if they feel like it. There are still people alive who can recall making that terrible mistake with some seriously bad rulers, and at a cost of human misery that is beyond measure.

Here are some basic facts of political life. First, there is a world of difference between punishing people found guilty of a crime; distinguishing in our treatment of people because we believe that they have some different characteristic that merits such a legal distinction; and depriving people of their rights not for what they have done, but because of what we fear that they might do. Governments who seek to go outside the machinery put in place to deal with the first category in order to issue some administrative decree in the second or third, are to be most closely watched. It is not easy to think of a good precedent.

Secondly, when you give rights away to the government, or give them more powers, it is very hard later to get back to where you were. It simply goes against the grain for any ruler to give back powers that they have wrested from their people. At the end of his time as dictator, Cincinnatus went back to the plough on the farm – so they say. That was centuries before the birth of Christ. Name one who has done that since. We all know that power corrupts, and governments develop a kind of mission creep about the aggregation of power. Just look at FIFA, the IOOC, the BCCI, and almost every nation in Africa or what was the USSR.

Thirdly, politicians are not always at their candid best when they are seeking more powers, and emergencies have a bad habit of becoming permanent. The best example is probably the emergency measure adopted by the British parliament under the leadership of William Pitt in the nation-threatening Napoleonic Wars. The measure was widely seen as an unprecedented outrage at the time by people of all political colours, but it was reluctantly adopted as an emergency measure by a nation facing a threat that would only be surpassed by that posed by Hitler. The emergency measure was a new tax. It was called income tax.

Finally, since we are talking of putting power to deal with peoples’ rights in the executive (the government and its ministers) rather than with the judiciary (Her Majesty’s judges), we need to bear one thing steadily in mind. By and large people in this country trust and respect their judges. That is emphatically not the case with any politicians who will form the relevant government or ministry – any politicians of either colour, and at any level – and the people who know this best of all are the politicians. They will therefore be asking us to take our trust and put it where we are least comfortable. Why would they want us to do that?

XII

In 1955, the man most Australian lawyers consider to have had the greatest judicial mind that this country has produced, Sir Owen Dixon, delivered a paper at Yale University called ‘Concerning judicial method.’ It is thought by some people to be too cautious and old fashioned, but in my view it contains as good a statement of the essence of the common law tradition as can be found. His Honour was concerned with what he saw as the dangerous ambition or state of mind of innovative judges – and there was no great secret about his main target. He was directing his attention at judges who chose to depart from a long accepted principle and ‘deliberately to abandon the principle in the name of justice or of social necessity or of social convenience.’ In my view, the observations of Sir Owen apply with as much force to politicians, in either parliament or the executive, who seek to abandon long accepted principle in the name of justice or social necessity.

Sir Owen referred to an observation of Aristotle that ‘the effort to be wiser than the laws is what is prohibited by the codes that are extolled.’ (Immediately before that remark, Aristotle had said that ‘not to use the laws is as bad as to have no laws at all.’) The reason is clear enough – the first object of the rule of law is to put everyone under the law, including the judges, and not let them flit in and out as they please.

His Honour concluded his address with a warning to judges that in my view can be applied word for word to such of our politicians who may now want to depart from long established principle in the name of some newly felt social or political need. The warning would have even more weight for any politician seeking to tamper with the fabric of our legal rights in return for short term political gain.

The demands made in the name of justice must not be arbitrary or fanciful. They must proceed, not from political or sociological propensities, but from deeper, more ordered, more philosophical and perhaps more enduring modes of justice. Impatience at the pace with which legal developments proceed must be restrained because of graver issues. For if the alternative to the judicial administration of the law according to a received technique and by the use of logical faculties is the abrupt change of conceptions according to personal standards or theories of justice and convenience which the judge sets up, then the Anglo-American system would seem to be placed at risk. The better judges would be set adrift with neither moorings nor chart. The courts would come to exercise an unregulated authority over the fate of men and their affairs which would leave our system indistinguishable from the systems which we least admire.

You do not see such ideas expressed so deeply now, and we are worse off as a result.

Eight hundred years on

05/06/201505/06/2015 / Geoffrey Gibson / Leave a comment

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 800^th birthday.

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.

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.

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.

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:

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.
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.

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.