Dawn Oliver: Surprises in Magna Carta

dawn oliverI assume that I am not the only public lawyer who decided to read Magna Carta and some literature about it for the first time this year, and found some surprises. Like most of us, no doubt, I knew that the Charter contains provisions that subject the King to the law (Article 61 ‘the Security Clause’) and others to the effect that there shall be no taxation without the general consent of the kingdom (article 12); such consent to be obtained by summoning church leaders and nobles to meet with the King (article 14); punishment should be proportionate to the crime (article 20); peers should be tried by their equals (article 21); free men may only be penalised by the lawful judgment of their equals or by the law of the land (article 39); and ‘to no one will we sell, to no one deny or delay right or justice’ (article 40).

The King repudiated Magna Carta shortly after it was sealed (he never signed it). There followed civil war and a short lived invasion by King Louis of France. Magna Carta was reissued after John’s death in revised terms by William Marshall, regent to Henry III, in 1216 and 1217 and by Henry III in 1225.

The terms of the Charter were not of course judicially enforceable against the King, and in practice were hardly enforceable against the barons or by free men. (So in what senses other than the King’s own commitment in terms did Magna Carta subject the King to the law? See the security clause, below.)

However many of the principles in the Charter have proved durable and find their place in modern terms in our current constitutional arrangements.

Below are notes about some of the striking (to me at least) and less well-known articles in the Great Charter. Some of them even made me smile when I read them. (If you know all about it, do not read on.)

Article 1: ‘The English Church shall be free’. (This was the only grant in the Charter made by the King of his own free will. But he depended heavily on the support of the Pope Innocent III who regarded him as holding his kingdom as a fief of the Holy See.)

Article 6 ‘Heirs may be given in marriage, but not to someone of lower social standing.’ (Class consciousness is not new.)

Article 8 ‘No widow shall be compelled to marry’. (An early and rare example of aspirations to limited female emancipation.)

Article 24 ‘No sheriff, constable, coroners or other royal officials are to hold lawsuits that should be held by royal justices’. (The ultra vires principle goes back a long time.)

Article 35 ‘There shall be standard measures of wine, ale and corn (the London quarter), throughout the kingdom. …. Weights are to be standardised similarly’. (A forerunner of EU policy?)

Article 45 ‘We will appoint as justices, constables, sheriffs, or other officials, only men that know the law of the realm and are minded to keep it well’. (This is one that made me smile. Start of a professional and separate judiciary? A principle clearly not accepted by James I in the Prohibitions del Roy, 1607, but asserted by Coke CJ in that case.)

Article 54 ‘No one shall be arrested or imprisoned on the appeal of a woman for the death of any person except her husband’. (Mixed messages about women in the Charter. Remember the old rules about the need for corroboration of women’s evidence, for instance in sexual offences?)

Article 56 ‘If we have deprived or dispossessed any Welshmen of land, liberties, or anything else in England or in Wales, without the lawful judgment of their equals, these are at once to be returned to them’. Disputes are to be determined according to English law, Welsh law and the law of the Marches, depending where the holdings of land are. (Separate legal systems and jurisdictions in England and Wales are not new.)

Article 59 ‘With regard to the return of the sisters and hostages of Alexander, King of Scotland, his liberties and his rights, we will treat him in the same way as our other barons of England….’ (Did the 2014 pro Scottish independence campaign in Scotland know about this?)

Article 61 (The security clause.) ‘…. We give and grant to the barons the following security. If we, our chief justice, our official, or any of our servants offend in any respect against any man, or transgress any of the article of the peace or of this security, and the offence is made known to four of the said twenty-five barons, they shall come to us – or in our absence from the kingdom to the chief justice – to declare it and claim immediate redress. If we, or in our absence abroad the chief justice, make no redress within forty days …. the four barons shall refer the matter to the rest of the twenty-five barons, who may distrain upon and assail us in every way possible, with the support of the whole community of the land, by seizing our castles, lands, possessions, or anything else saving only our own person and those of the queen and our children until they have secured such redress as they have determined upon. Having secured the redress, they may then resume their normal obedience to us’. (No wonder John repudiated the charter almost immediately, and this clause was omitted from later reissues of the charter. Note the high status of the chief justice…)

So how was the Charter to be enforced? Not judicially under the Charter, but from 1225 by measures not mentioned in the Charter at all – ecclesiastical sentences of excommunication at the will of the Pope or his legate in England.

See generally David Carpenter, Magna Carta, London, Penguin Classics, 2015, and Anthony Arlidge and Igor Judge, Magna Carta Uncovered, Oxford, Hart Publishing, 2014.

Dawn Oliver is Emeritus Professor of Constitutional Law at University College London. 

(Suggested citation:  D. Oliver, ‘Surprises in Magna Carta’ U.K. Const. L. Blog (23 Mar 2015) (available at https://ukconstitutionallaw.org/))