{"id":3802,"date":"2022-01-05T22:06:12","date_gmt":"2022-01-05T22:06:12","guid":{"rendered":"https:\/\/truthinlawblog.com\/?p=3802"},"modified":"2023-07-12T08:54:53","modified_gmt":"2023-07-12T08:54:53","slug":"why-magna-carta-still-matters","status":"publish","type":"post","link":"https:\/\/truthinlawblog.com\/why-magna-carta-still-matters\/","title":{"rendered":"WHY MAGNA CARTA STILL MATTERS"},"content":{"rendered":"\n
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Australia Colloquium, Adelaide
 
9 October 2015<\/p>\n<\/div><\/div>\n\n\n\n

Steven Rares*<\/strong><\/p>\n\n\n\n

  1. In the context of human civilisation, 800 years is a long time. The 1215 world of kings and barons negotiating the terms of settlement of a brewing civil war in the meadow at Runnymede, near Windsor like the plays of Shakespeare 400 years later, strikes many chords, some discordant, some harmonious, with today\u2019s world.<\/li>
  2. Our social structure, language, apparel and physical environments are very different, yet, like Shakespeare\u2019s writings, the central themes are timeless. King John needed revenue to finance his proposed new crusade. The barons felt they had been overtaxed and that the king had governed in a manner that had whittled away their ancient rights and privileges. That scenario resonates today \u2013 we complain that we, too, are overtaxed and our rights are being taken away, not by monarchs, but by governments nonetheless. So, is there something to celebrate in this year of the 800th<\/sup> anniversary of Magna Carta<\/em> or is it a case, to use modern expression of the evolved French language of the time of \u201cplus \u00e7a change, plus c\u2032est la m\u00eame chose\u201d?<\/li>
  3. Before attempting to answer that, it might help to give some perspective if I repeat a discussion that I had in Beijing last year with a judge of the Supreme People\u2019s Court of the People\u2019s Republic of China. We were talking about President Xi Jinping\u2019s determination to implement the rule of law in China. My Western-educated colleague told me that the President\u2019s vision for the rule of law was not what we would understand it to be. He said that in the last 20-30 years, well over 300 million people from rural areas had migrated to Chinese cities but they did not understand or obey the laws that governed life in those cities. Many of them did not obey the road rules, spat in the street, did not consider the impact of their behaviours on others around them and did not do what local authorities needed done to keep society orderly.<\/li>
  4. President Xi, he said, wanted these people to understand that the rule of law required that they obey the law, to benefit everyone. My judicial friend then made the telling point that after the United States had fought its Civil War in the 1860s to abolish slavery, it amended its Constitution to provide that all persons were entitled to the equal protection of the laws. But, in his words, it had taken another 90 years for the Supreme Court of the United States to decide in Brown v Board of Education<\/em>1<\/sup><\/a>that black children were legally entitled to travel with and go to the same schools as white children. He concluded: \u201cSo you in the West cannot expect us to do everything in one generation.\u201d<\/li><\/ol>\n\n\n\n

    The origins of <\/strong>Magna Carta<\/strong><\/em><\/p>\n\n\n\n

    1. Indeed, what Magna Carta<\/em> has symbolised for Western democracy, since no later than the time of its greatest propagandist, Sir Edward Coke, is a far cry from what history has revealed about its immediate effect in 1215. Pope Innocent III issued a papal bull, as King John always intended would happen, annulling Magna Carta<\/em> less than 10 weeks after it had been granted on 15 June 1215. But, to appropriate a phrase of Winston Churchill, that was not the beginning of the end, but the end of the beginning. The whole story is beautifully told by the former Lord Chief Justice of England and Wales, Lord Igor Judge and Anthony Arlidge QC in their book published last year, Magna Carta Uncovered<\/em>2<\/sup><\/a>.<\/li>
    2. In essence, much, but not all of the 1215 Charter was used as the foundation for three subsequent charters issued in the nine years after King John\u2019s unlamented death from dysentery in October 1216. At that time, contrary to what we were taught at school, England had been invaded by Prince Louis of France, an ally of the rebellious barons, and together they controlled much of England. The King of Scotland also supported the rebels.<\/li>
    3. William Marshal, Earl of Pembroke, was appointed regent on the ascension of John\u2019s infant son, Henry III. In late November 1216, Marshal and the papal legate immediately reissued, in the new King\u2019s name, an amended Magna Carta<\/em> in order to garner some support from the opposing forces. In May 1217, Marshal, who was then about 70 years old, led the royal forces against the rebels at the Battle of Lincoln. He had a decisive victory. Next, Louis abandoned his seize of Dover.<\/li>
    4. On 24 August 1217, the royal forces won a sea battle off Sandwich defeating a French fleet bringing reinforcements for Louis. Then, on 29 September 1217, the Treaty of Lambeth was signed and Louis abandoned his claim to the English Crown. Henry III, through Marshal as his regent, was then in full control of England, and was no longer facing civil war waged against him by the barons supported by Louis.<\/li>
    5. In early November 1217, after a meeting of the King\u2019s or Privy Council, two charters, that incorporated much of what had been in the 1215 and 1216 cognate charters, were issued under the name of the infant king but sealed by both Marshal and the papal legate. These were the Charter of the Forests<\/em>, and a longer document that only after 1217 came to be called Magna Carta<\/em>, as Coke put it \u201cnot in respect of the quantity, but of the weight\u201d3<\/sup><\/a>.<\/li>
    6. The historical significance of the 1217 charters is that, unlike those of the two previous years, these were issued without the king, or his regent, being under duress or threat. They, therefore, gave the King\u2019s promises and concessions freely. This occasion, and not that at Runnymede, perhaps, is the real genesis of our understanding of the rule of law. And then, when Henry III came of age in February 1225 he, as King in his own right under his seal, reissued Magna Carta<\/em> \u201cin perpetuity\u201d, specifically in exchange for an agreement to a tax on moveables in order to fund his campaign to defend Gascony.<\/li>
    7. How familiar to us, eight centuries later, is the concept that taxation is not a one way street, but comes at the price of concessions by government or, in modern concepts, Parliament?<\/li>
    8. After 1225, monarchs regularly confirmed Magna Carta<\/em>. However, it was Edward I\u2019s confirmation in 1297, in exchange for another tax on moveables, that resulted in Magna Carta<\/em> being entered on England\u2019s statute roll or book4<\/sup><\/a>.<\/li>
    9. The most influential provisions of the 1215 charter, c 39 and 40, have survived as c 29 of the 1225 charter and its reissues. Only c 29 survives in the substantive statute law of four Australian State and Territory jurisdictions, and as the received law in the other three States and Territory5<\/sup><\/a>. As translated from the original Latin, c 29 reads6<\/sup><\/a>:<\/li><\/ol>\n\n\n\n

      \u201cNO free man shall be taken or imprisoned, or be 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 [<\/strong>condemn him,]<\/strong> 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.\u201d7<\/sup><\/a><\/p>\n\n\n\n

      1. I will discuss c 29 in more detail later. There were some other significant provisions that have framed modern constitutional perspectives. First<\/em>, the 1225 Charter was headed \u201cThe Great Charter of the Liberties of England<\/em>\u201d, the original 1215 version being headed \u201cCarta Libertatum<\/em>\u201d or \u201cThe Charter of Liberties<\/em>\u201d. The 1225 version also provided that:<\/li><\/ol>\n\n\n\n