Lately there's been a lot of attention directed at that magnificent document, the Magna Carta. Unfortunately, as a keen lover of Legal History, I'm struggling a bit with the fuss, so let's talk a little bit about it.
Firstly, here is some fuss, here is a copy of the Magna Carta's text, and here is the info about the upcoming exhibition at the British Library.
So, the Magna Carta is and was pretty special. Firstly, at that time (the first draft was written in the year 1215) "statutes" weren't really a thing: there was a system of common law, based on decisions of judges (at that time fairly synonymous with barons/lords, including the King as the ultimate lord), and the results of individual cases. If the King said "It shall be that X", that's not really viewed as too different from a judge saying it - certainly there's no division of the stuff said by the legislature (nowadays Parliament) and the executive (nowadays the government) because they weren't clearly demarcated. So the Magna Carta is special because it was a set of written rules for the whole country, although it didn't set out a form or process for creating statutes generally - it was a special case.
Another special feature of the Magna Carta was its help in centralising the power of the king and ensuring the kind of complete power that kings had in this country for hundreds of years. "What!", I hear you shriek - the Magna Carta is a charter of rights and enshrined principles like the right to know what you're being accused of! Well, yes, as a by-product, but we'll come back to that in a minute.
Some time before the Norman Conquest, most people know from school history lessons, England was a number of separate kingdoms (Mercia, Wessex, etc). Eventually they were all united under some stronger kings, with the help of some viking invasions (of which the Norman Conquest was really just a big one - "Norman" = "north man" = "basically a viking living in France"). So when we have the Magna Carta being pressed onto unwilling King John by his barons, they're not used to being subject to an all-powerful king. The deal is that you provide military service ("knight-service" is one of the main tenures, or ways of holding land, that Littleton describes) in return for control of land. You're answerable to the King if you're fairly high ranking, or else to another lord, creating a chain of tenures with the King at the top and peasants in villeinage (serfs) at the bottom. What you do with your underlings is largely up to you: they pay you, work for you, provide food, whatever the conditions of their tenure are, and if they have a complaint about another tenant, they come to you for justice.
However, these "lords courts" or "baronial courts" weren't exactly the fairest system - what happens if your complaint is that your lord himself has wrongly taken your land? So individuals and tenants of lords other than the king would skip asking their lord to correct the wrong and go to the king/the king's councils and ask for help. The King might then help you out in your case (this eventually becomes the Chancery Court and the are of law known as "equity" - but that's a blog post for another day). The trouble is, that you haven't paid any money for administration etc to your lord's court, because you've gone straight to the King, and quite possibly the King/his officials are now telling your lord that he can't do what he wants to, or perhaps that he needs to give your land/cow/daughter back, when he'd rather keep it/her.
So, about halfway through the Magna Carta it provides that the writ called "praecipe" shall not be issued to deprive a free man of his court. Probably the goal here is to protect the baronial courts from losing all their jurisdiction to the (arguably) fairer and more effective courts of the King. There is another argument that it was meant to protect tenants from the inconvenience of having to go to the King (physically travelling to his location), but given that the barons are imposing these conditions on John, we can make an educated guess here as to the prevailing motive. This part of the Magna Carta turned out to be pretty much ineffective: royal writs would include in them that the lord had waived his right to court, basically abusing the system and skipping the part where you actually ask the lord to do that in the hope you'll get away with it. Within a hundred years the baronial courts are dying off and justice has been largely centralized in that it's now King-focused .
It has to be done - the Magna Carta
Author: The Displaced Academic /
So that great preserver of rights, the Magna Carta, included a preservation of the barons' rights to, er, not respect their tenants' rights.
But that's just one provision from many.
We have a provision for the freedom of the church, right at the very beginning, for instance - that sounds like a right being protected. That's about election of churchmen and interfering with the clergy, which of course matters when they're the ones doing the marrying and wills and estates etc, more than it's about freedom of religion. King John had recently refused to appoint an Archbishop of Canterbury in an attempt to commandeer the income from the seat and had an argument with the Pope about it - this was one of the important causes of the barons' revolt that caused the creation of the Magna Carta. But it's a good start, perhaps - possibly undermined by other provisions from the time and the statute in 1279 which said you can't leave too much to the church in your will to stop the King from being deprived of income (once it goes into the Church's dead hand, "mortmain", it's never going to go back into private hands - something Henry VIII noticed acutely).
Then there's quite a lot about inheritance and marriage. That genuinely does include some rights: rights not to have your inheritance subject to an unreasonable fee or have its income abused by your guardian, powers to marry off your young wards, a widow's rights. All good stuff, totally irrelevant by the late 16th century and not the stuff of the HRA.
Now, a real right, at last, is found in the paragraphs about "scutage" and "aid" - this is basically tax legislation, limiting the amount of money you can extort from your tenants, including limiting what the King can take from his tenants, the barons (but didn't apply to "unfree" people, ie the ones actually working the land - you could extort whatever from them until Tudor times). King John had been exacting some fairly massive taxes during a time of high inflation, and the barons needed to check that for their own sakes. Great - and one of the main reasons the Magna Carta was disavowed and reissued so many times. Kings don't like being told how much they can tax - the English Civil War shows what happens when they get carried away. So we have promise in these paragraphs, but a few hundred years to realization, and also bear in mind that the only people who had to be consulted for a tax to be valid were the rich and powerful.
Then we have some administrative provisions about courts; these are useful and helpful. Included in these provisions we have the gloriously famous provision that no free man shall be imprisoned except via lawful means (to paraphrase a little). Again, this was probably included because King John had a habit of imprisoning people who disagreed with him and taking hostages, rather than because anybody was trying to create foundational rights - to give the document that meaning is an anachronism.
My point is not that the Magna Carta isn't a fantastic document - I have a framed copy on my wall - nor that it wasn't hugely important. But as we celebrate 800 years from the first draft, we should be aware of the context, the meaning it had to those who created it, and remember that when we say "it created fundamental rights and justice for all" that we're imposing our own values on a document created by the rich and powerful, who were seeking to preserve their wealth and rank, and who (all several dozen of them, all men) completely ignored the unfree ordinary people who made up most of the population of England.
P.s. if you're interested in this stuff, you can't do better than Peter Ackroyd's "Foundation" book, or, for the more technical legal mind, J H Baker's textbook on legal history.
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