Saturday, August 09, 2014

Magna Carta - the tree of freedom is plucked bare

Images adapted from: BBC, Saga's Cottage
We think of Magna Carta as a bulwark of English liberty against arbitrary State authority, and it was seen as that at the time:
309. In the Presbytery (the second brass from the south).
(Clare chevrons) Gilbertus de
Clare nomine primus
comes Glocestrie 6s et Hertfordie
5s Obijt 25o Octobris Anno dni 1230.
(pen) Magna carta et lex
caveat deinde rex (scroll).
Gilbert de Clare, the first of that name, 6th Earl of Gloucester and 5th of Hertford, died 25th October A. D. 1230. Magna Carta and law, let the King henceforth beware.
That same inscription was quoted by Stanley Baldwin less than 80 years ago:
" "Magna Carta is the Law: Let the King look out."

So it has always been with tyrants among our own people: when the King was tyrant, let him look out. And it has always been the same, and will be the same, whether the tyrant be the Barons, whether the tyrant be the Church, whether he be demagogue or dictator — let them look out."
  • Speech at Westminster Hall (4 July 1935); published in This Torch of Freedom: Speeches and Addresses (1935), p. 4
Yet very little of Magna Carta remains in force, as A P Herbert pointed out in his humorous "Misleading Cases" piece from 16 February 1927, "Rex v. Haddock: Is Magna Carta Law?" Albert Haddock is trying to get out of (or have reduced) a parking fine, but the judge says:
"... it was argued before me that at least that portion of Chapter 29 still has effect which reads:
'Nor will we proceed against a freeman, nor condemn him, but by lawful judgment of his peers or by the law of the land.'
But it was proved in evidence that in fact this method of condemning the freeman is the exception rather than the rule, and it was suggested that this portion of Magna Carta must be interpreted in the light of recent statutes, so that it reads:
'Nor will we proceed against a freeman, nor condemn him, but by lawful judgment of his peers or by the law of the land, or Government Departments, or Marketing Boards, or Impregnable Monopolies, or Trade Unions, or fussy Societies, or Licensing Magistrates, or officious policemen, or foolish regulations by a Clerk in the Home Office made and provided.'
The judge in that story also points out that notwithstanding Clause 40, the law is known for its delays - and expense:
"... much justice is sold at quite reasonable prices, and ... there are still many citizens who can afford to buy the more expensive brands."
What's left?
"Only three of the 63 clauses in the Magna Carta are still in law. One defends the freedom and rights of the English Church, another relates to the privileges enjoyed by the City of London and the third - the most famous - is generally held to have etablished the right to trial by jury.

Below are the full translations of the relevant clauses from the 1215 copy of the Magna Carta held at the British Library.

1. Clause 1: The liberties of the English Church

"First, that we have granted to God, and by this present charter have confirmed for us and our heirs in perpetuity, that the English Church shall be free, and shall have its rights undiminished, and its liberties unimpaired.

"That we wish this so to be observed, appears from the fact that of our own free will, before the outbreak of the present dispute between us and our barons, we granted and confirmed by charter the freedom of the Church's elections - a right reckoned to be of the greatest necessity and importance to it - and caused this to be confirmed by Pope Innocent III. This freedom we shall observe ourselves, and desire to be observed in good faith by our heirs in perpetuity.

"To all free men of our Kingdom we have also granted, for us and our heirs for ever, all the liberties written out below, to have and to keep for them and their heirs, of us and our heirs."

2. Clause 13: The privileges of the City of London*

"The city of London shall enjoy all its ancient liberties and free customs, both by land and by water. We also will and grant that all other cities, boroughs, towns, and ports shall enjoy all their liberties and free customs."

3. Clauses 39 & 40: The right to trial by jury

"No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.

"To no one will we sell, to no one deny or delay right or justice. No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled . nor will we proceed with force against him . except by the lawful judgement of his equals or by the law of the land. "  "

How few leaves are left on the tree of liberty! And if so many have been blown away already, what guarantee do we have that the rest may not fall?

If we love the idea of liberty, we shall have to re-assert it, and there are new aspects that we might wish to address in a modern version, particularly the endless spying by the State on its citizens.

That's if we can call the State to account any more. After all, we are not powerful barons, nor (it seems) is the Crown in Parliament fully sovereign.

The 800th anniversary of Magna Carta falls on 15 June 2015. Should we do something for that day?

*See Graham S McBain's "Liberties and Customs of the City of London – Are There any left?" (2013) -


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Alan Francis said...

There is another train of thought, that, parliament can only change what it has created! Magna Carta was written before Parliament came into being, so cannot be changed.

Also MC was added to the books as Statute Law, which means they can change the statute, however they cannot change the original and as common law trumps statute, MC still exists in its entirety.

Sackerson said...

Alan, I have also seen it argued as a general legal principle that if you don't take timely action to assert your right, you lose it, on a sort of qui tacet consentire basis.