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March 11, 2015

Magna Carta in the modern age

Rozenberg, Joshua Matthew, Magna Carta in the modern age, The British Library. Click here to read the article on the British Library’s Website.

Today Magna Carta has become a world-class brand, representing human rights, democracy and free speech – despite the fact that the original document makes no mention of these principles. Joshua Rozenberg explains Magna Carta’s place in modern legal and popular culture, and reveals the importance of its 800-year-old symbolism.

Magna Carta is a world-class brand. It stands for human rights and democracy. It stands for trial by jury. It stands for free speech, the rule of law and personal liberty. Except it doesn’t mention any of these things — even in translation. Instead, Magna Carta has quite a bit to say about fish weirs and river banks, about taxes and debts. Two months after King John (r.1199-1216) granted the charter to his barons, he had it nullified by the Pope. There were good grounds to do so, since it was extracted from the King by duress. Although Magna Carta was later reissued, only a few sentences remain on the statute book today.

But brands are not just the sum of their parts. To most people, Coca-Cola means a lot more than sweetened fizzy water with added natural flavouring. Apple products are adored by users who are utterly indifferent to personal computers. And Magna Carta is similarly iconic: regardless of what it says on the parchment, it enjoys instant recognition as the most important legal document in the common law world. We see that from the countless images of King John meeting the barons in 1215, all of them imaginary and most of them wildly anachronistic. We see it in the bags and baubles, the mugs and magnets, sold on the strength of two Latin words. We see it in newspaper cartoons, with David Low warning us in the Evening Standard in 1934 that Oswald Mosley’s ‘Magnissima Carta’ would mean the end of free speech and Peter Brookes telling us in The Times in 2005 that Tony Blair’s anti-terrorism controls left the United Kingdom with no more than a ‘Mini Carta’.

And we hear it in the immortal lines spoken in 1959 by one of television’s best-loved comedians. ‘Does Magna Carta mean nothing to you?’ demanded Tony Hancock (1924-68) of his fellow jurors: ‘Did she die in vain?’ Perhaps Galton and Simpson, Hancock’s scriptwriters, were recalling Sellar and Yeatman’s classic history spoof 1066 And All That, with its frontispiece image of a king smitten by the sight of his lady’s magna garter.

The symbolism of Magna Carta

Such confusion — iconoclasm, even — is understandable in a nation that puts its trust in people rather than in paper. The British have never codified their constitution because most people think that writing it down would not achieve very much. Magna Carta may vie with the English language itself for the title of Britain’s greatest gift to the world, but its place in the laws of England and Wales is largely symbolic.

And yet it is a symbolism that crosses the political spectrum, inspiring fascists and communists, suffragists and environmentalists. Nelson Mandela (1918-2013), speaking from the dock during the Rivonia trial of 1964, expressed his admiration for it. The German-born composer Kurt Weill (1900-50) based a cantata on it. Churchill was advised that a copy of the original charter might reinforce a shared political heritage and secure the support of the United States in World War II.

To some, it seems to be a magic charter. Magna Carta was relied on by one of the Occupy London group of protestors who camped in the courtyard of St Paul’s Cathedral in the winter of 2011/12. Paul Randle-Jolliffe maintained that his supposed descent from one of King John’s barons exempted him from compliance with an eviction order — until the Court of Appeal explained that ‘Magna Carta heir’ was a concept unknown to the law. As the judges told him, ‘Chapter 29, with its requirement that the state proceeds according to the law and its prohibition on the selling or delaying of justice, is seen by many as the historical foundation for the rule of law in England; but it has no bearing on the arguments in this case.’

That was not a reference to clause 29 of the first Magna Carta. After its annulment in 1215, that charter was revised and reissued in 1216, 1217 and 1225. It was the 1225 version — much shorter than the original — that was confirmed by Edward I (r.1272-1307) and found its way on to the first Statute Roll in 1297. And most of the 1297 statute was repealed by Parliament at various times between 1828 and 1969.

The modern legal interpretation of Magna Carta

Just three clauses of that statute remain law in England and Wales today. Clause 1 provides that ‘the Church of England shall be free’. Clause 9 promises that ‘the City of London shall have all the old liberties and customs’ that it had before. But the best-known remnant is clause 29. Derived from clauses 39 and 40 of the 1215 charter, it says:

No freeman shall be taken or imprisoned, or disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed; nor will we not pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right.
These are fine principles but they do not stand up well to modern principles of statutory interpretation.

First, does ‘man’ embrace ‘woman’? Yes, because the Interpretation Act 1978 says that ‘words importing the masculine gender include the feminine’. Next, can anyone who is not a ‘freeman’ claim the rights listed in the first sentence? Historians tell us that freemen were able to marry or go where they pleased, unlike the rural peasantry or serfs who were generally bonded to their land and unable to marry without purchasing their lord’s permission. Fortunately, the Human Rights Act 1998 requires all legislation to be given effect in a way that is compatible with human rights. Courts would be expected to interpret ‘freemen’ as meaning ‘all people’.

So the first sentence of clause 29 seems to mean that nobody can be convicted or punished except by the law of the land. One should not underestimate the importance of such a concession by the King in 1215. ‘There, clearly recognisable, was the rule of law in embryo,’ observed Lord Bingham, perhaps the most eminent English judge of recent times.
In the United Kingdom, governments would continue to observe the law of the land even if clause 29 of the 1297 statute were repealed. And yet the rule of law is far from universal. In the spring of 2014, almost 800 years after Magna Carta was granted, we saw protestors shot dead by military snipers in Kiev, a city at the very borders of Europe. There are several parts of the world in which opponents of the ruling regime simply ‘disappear’. Their supporters would welcome concessions such as those made by King John in 1215.

The second sentence of chapter 29 was cited by a High Court judge as recently as 2007. Quoting Sir James Holt’s resonant translation (1965) ‘to no one will we sell, to no one will we deny or delay right or justice’, Mr Justice Munby complained about the time the courts had taken to hear a housing claim, expressing the view that ‘the potential delay here amounted to a denial of justice in the sense in which that phrase is used in Magna Carta’. Warming to his theme, Munby said there were ‘some principles that ring down the centuries’. In this respect, he continued, the message of Magna Carta was ‘timeless’.

Is Magna Carta still used in the courts?

A search of the Westlaw UK database reveals that the courts of England and Wales have referred to Magna Carta in around 160 reported judgments over a period of some 450 years: not, perhaps, a particularly large number. And I have not found a single modern English case that was decided on the strength of Magna Carta alone.

Litigants-in-person — non-lawyers — tend to invest Magna Carta with more weight than it can carry. In 2013, a man acquitted of growing cannabis sought compensation from Scottish police and prosecutors for time he had spent on remand. David Watson relied on Magna Carta to support his claim that he was not bound by laws to which he had not consented. A Scottish judge had no difficulty in finding no basis for that claim.

These litigants seem to imagine that Magna Carta operates as some sort of restraint on the supremacy of Parliament. It does not. The power of Parliament to legislate as it sees fit dates from the Bill of Rights 1689. It cannot be limited by a statute passed four centuries earlier.

Judges do not enforce Magna Carta today because its terms are too broad to be applied by the courts. It is all very well to say that justice delayed is justice denied. But how long does the delay have to be for it to amount to an injustice? Although some civil claims must now be lodged within a matter of weeks, there is no statute of limitations in criminal cases. Anthony Sawoniuk, a Nazi war criminal, was jailed at the Old Bailey in 1999 for murdering Jews in 1942. Roland Peter Wright, a former headmaster, was imprisoned in 2014 for abusing pupils between 1959 and 1970. Were such delays sufficiently long to render those convictions unjust?
‘To no one will we sell … justice’ is another provision that is difficult to apply. Does it mean simply that judges must not take bribes? Nobody would disagree with that. Or does it mean that people who cannot afford lawyers — and even court fees — must be given the funding they need to enforce their rights?

What’s more, ‘judgment of his peers’ does not guarantee trial by jury. Juries, as we now know them, did not exist in 1215 and are used in only a small minority of trials today.

Magna Carta is still cited in the courts of the United Kingdom — but often as little more than a historical flourish. Some examples from recent judgments: the importance attributed to personal freedom can be traced back at least to Magna Carta; it has been said from the time of Magna Carta that justice delayed is justice denied; and open justice is one of the oldest principles of English law, going back to before Magna Carta. And here is Lady Justice Arden, giving judgment in 2011. ‘The right to liberty of the person is a fundamental right,’ she said. ‘It has been so regarded since at least the time of the well-known provisions of clause 39 of Magna Carta, which in due course found its reflection in article 9 of the Universal Declaration of Human Rights and article 5 of the [European] Convention [on Human Rights].’

Magna Carta in the United States

This takes us to lands where Magna Carta is revered rather more than in the country of its birth. The Universal Declaration of Human Rights was adopted by the United Nations General Assembly in 1948. Article 9, summarising clause 39 of the 1215 charter, says, ‘No one shall be subjected to arbitrary arrest, detention or exile’.

That, in turn, led directly to the European Convention on Human Rights, which took effect in 1953. Article 5 begins: ‘Everyone has the right to liberty and security of person’. Through the Human Rights Act 1998, article 5 became enforceable against public bodies in the courts of the United Kingdom.

In 1939, when Lincoln Cathedral’s copy of the 1215 charter was put on show at the World Fair in New York, an estimated 14 million people went to see it in just six months. After war broke out, the cathedral’s copy was stranded in the United States, leading to the suggestion that the Americans should be allowed to keep it — or alternatively have it replaced with one of the copies now displayed in the British Library.

It would have been a priceless gift. An American author, writing in 1991, calculated that more than 900 federal and state courts in the United States had cited Magna Carta. In the half-century between 1940 and 1990, the United States Supreme Court had done so in more than sixty cases.

More recently, the highest court in the United States had to decide whether foreign prisoners detained by the United States at Guantánamo Bay, Cuba, could seek writs of habeas corpus that might lead to their release. Allowing their appeal in 2008, the court traced that powerful remedy back beyond the United States constitution of 1789 to what the judges regarded as its origin in clause 39 of Magna Carta. ‘Gradually, the writ of habeas corpus became the means by which the promise of Magna Carta was fulfilled,’ wrote Justice Kennedy for the majority.

A writ of habeas corpus (‘have the body’) commands someone holding a prisoner to bring that person before the court and justify imprisonment. But the link between Magna Carta and habeas corpus is surely romantic rather than historic. The writ was established in its modern form in the late sixteenth century, although its origins can be traced back to medieval court records.

A constitutional instrument

Despite all this, there is more to Magna Carta than words and parchment. It is not just one of the oldest statutes in force. It is, as the United Kingdom Supreme Court noted in January 2014, a constitutional instrument — standing alongside the Petition of Right 1628, the Bill of Rights 1689, the Act of Settlement 1701 and the Act of Union 1707. It was arguable, said the court, that fundamental principles contained in such constitutional instruments were not abrogated by the European Communities Act, which requires courts in the United Kingdom to follow European law.

Lord Judge, a former Lord Chief Justice of England and Wales, summed it up well in 2014.

Whatever we may find in the written text, Magna Carta has come down to us through the centuries as the most important single document in the development of constitutional and legal freedom and adherence to the rule of law in the common law world, eventually followed in and hugely influencing the Universal Declaration of Human Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms.
And, as Lord Bingham, another former chief justice, wrote in 2010, the few clauses of the 1215 Magna Carta that remain law today ‘have the power to make the blood race’. Their words, he suggested, ‘should be inscribed on the stationery of the Ministry of Justice and the Home Office in place of the rather vapid slogans which their letters now carry’.

But Bingham was too wise a judge to think he could enforce a medieval statute in modern times. ‘The significance of Magna Carta,’ he wrote, ‘lay not only in what it actually said but, perhaps to an even greater extent, in what later generations claimed and believed it had said. Sometimes the myth is more important than the actuality.’

It is an 800-year-old myth of which we may all be proud.

Joshua Rozenberg

Joshua Rozenberg is Britain’s best-known commentator on the law. He presents the long-running Radio 4 series Law in Action and writes a weekly column for the Guardian. He has a particular interest in freedom of expression and wrote the well-reviewed book Privacy and the Press for Oxford University Press (2004, updated 2005; Chinese edition 2012). After taking a law degree at Oxford he trained as a solicitor, qualifying in 1976. He holds honorary doctorates in law from the University of Hertfordshire, Nottingham Trent University, the University of Lincoln and the University of Law. He is an honorary bencher of Gray’s Inn.

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