This information is presented through the courtesy of Lord Phillips
Address to the Pilgrims of the United Kingdom
MAGNA CARTA
“No freeman shall be arrested or imprisoned, or disseised or outlawed or exiled or in any way victimised, neither will we attack him or send anyone to attack him, except by the lawful judgment of his peers or by the law of the land. To no-one will we refuse or delay right or justice.”
That pledge, given by – or to be more accurate extracted from – King John at Runnymede on 15 June 1215 has echoed around the world. In this country that pledge is reflected in the Bill of Rights and in the writ of habeas corpus. In the United States it inspired the authors of the Declaration of Independence.
Four copies of the original Charter remain – two in the British Museum, one in Salisbury Cathedral and one in Lincoln Cathedral.
At the outbreak of the Second World War the Lincoln copy was transported to the United States Library of Congress for safe keeping. While it was there no less than 14 million American citizens queued to view it. When it was returned there was a ceremony at which the Minister representing the United Kingdom remarked that the Magna Carta had a lineage “without equal in human history” and suggested that the most recent of its off-spring was the preamble to the United Nations Charter. Subsequent off-spring could be said to include the Universal Declaration of Human Rights, the European Convention on Human Rights and our own Human Rights Act.
I fear that the Magna Carta is more revered in the United States than it is in our own country. Certainly it was the American Bar Association that built the rotunda that stands at Runnymede as ‘a tribute to Magna Carta, symbol of freedom under the law’, and the American Bar Association has on three occasions come to Runnymede to celebrate Magna Carta and to pledge their adherence to its principles.
When President Kennedy was assassinated, it was at Runnymede that an acre of the Crown Estate was transferred to the people of the United States and a memorial built, crafted from Portland stone and inscribed with that memorable statement from President Kennedy’s inaugural address on 28 January 1961 which perhaps, at this time, it is worth repeating just once more:
“Let every nation know, whether it wishes us well or ill, that we shall pay any price. Bear any burden, meet any hardship, support any friend or oppose any foe in order to ensure the survival and success of liberty”
The undertakings that I quoted at the start of this talk did not take pride of place in Magna Carta. They formed chapters 39 and 40 of a total of 63. They were preceded, for instance by chapter 23, which provided:
“no vill or man shall be forced to build bridges at river banks, except those who ought to do so by custom and law”
and chapter 30 which provided:
“no sheriff or bailiff or ours or anyone else is to take horses or carts of any free man for carting without his agreement”
and chapter 33 which provided
“henceforth all the fish-weirs shall be completely removed from the Thames and Medway and throughout all England, except on the sea coast”.
Magna Carta was imposed on King John to remedy a host of grievances felt by the barons who owed him fealty, and its chapters throw shafts of light on what it was like to live under the King in feudal England.
The first chapter confirmed the freedom of the English church and that King John had granted :
“the freedom of elections which is reckoned most important and very essential to the English church, and obtained confirmation of it from the lord Pope Innocent III; the which we will observe”
It was not always so. In theory bishops were elected by the cathedral canons, subject to the approval of the Pope. But then, as now, the consecration of bishops could be a matter of some controversy. When Hubert, Archbishop of Canterbury, died in 1205, Pope Innocent spurned King John’s preferred candidate and instead, with the acquiescence of the Canterbury monks, consecrated Stephen Langton as Archbishop. John refused to recognise him, or even to permit him to enter the country. The Pope imposed an interdict on England, which required the clergy to withdraw their services. This was by no means rigorously observed. It was still possible to get married in England. But many bishops left the country in response to the interdict. This did not trouble John, who simply annexed their considerable incomes in their absence. The Pope responded by ex-communicating John.
This also he seems to have born with equanimity. Only in 1213 did he deem it politically expedient to re-habilitate himself with the Pope. This he did by ignominiously swearing allegiance to him in a public ceremony before a papal legate and promising to pay him an annual tribute of 1000 marks. It did the trick. Philip II of France, who had been planning an invasion of England, received stern instructions from the Pope that he was to do no such thing. He did not do so, probably not so much because of the Pope’s command but because the English had destroyed the French fleet in a daring cross-channel raid.
At all event one can understand why the freedom of the church formed the first pledge of Magna Carta.
Chapter 2 of the Charter capped at £100 the relief payable by the adult heir of a nobleman. Relief was a kind of death duty exacted by the king for permitting the heir to inherit his father’s estates.
John had steadily increased the sum demanded until some heirs were being forced to pay more than£6,000 – a massive extortion in the currency of the day.
Chapter 8 provided ‘no widow shall be forced to marry so long as she wishes to live without a husband’. Hitherto, if a baron died leaving a widow, her remarriage would be in the king’s gift and at his command. Henry II had under his custody a widow called Isabel de Clare, whose estates in Normandy were so considerable that he consigned her to the Tower of London for safe keeping.
When he died in France, his heir, Richard I, standing at the foot of his unburied corpse, turned to William Marshall, a retainer standing at his side, and said that he could have Isabel as his bride. William rushed off to claim her with such enthusiasm that he fell off the gang-plank when embarking at Dieppe. They fished him out and, in due course, the nuptials took place.
Another noble lady, who had been married and widowed three times over, offered the king over £3,000 to escape marrying a fourth time. He generously accepted.
If an heir was under age, he became the ward of the King, who treated his estate as if it were his own. Daughters of a deceased baron also came under his custody. He would give them in marriage to those to whom he was indebted, or even auction them off to the highest bidder. Chapters 4, 5 and 6 of Magna Carta put an end to these practices.
Not all marriages were arranged and some wives were manifestly in love with their husbands. For them, absence often made the heart grow fonder, for King John expected his courtiers to dance attendance on him at his court unencumbered by their wives.
At Christmas one year the wife of one of his senior household officials offered him 200 chickens for permission to lie one night with her husband. This offer the king accepted. I hope that it was worth it.
Chapter 44 provided ‘men who live outside the forest need not henceforth come before our justices of the forest’ and chapter 47 provided ‘all forests that have been made forest in our time shall be immediately disafforested’. This calls for some explanation. In the time of King John one third of England was covered in forest, albeit much of this inhabited. The king asserted dominion over all land designated as forest. Anyone who cleared and cultivated land became obliged to pay him rent. There were many offences special to the forest, such as excessive felling of trees, or ‘waste’. In forest courts the justices of the forest administered a rough justice and added substantial sums to the royal coffers. Relief could be obtained from the burdens attendant on living in forests – but at a considerable price.
For a large lump sum King John was prepared to ‘disafforest’ designated areas. The inhabitants of Cornwall, Devon and Surrey clubbed together to buy their release, but the king was then quick to ‘afforest’ other areas.
Furthermore he introduced a particularly underhand measure under which anyone who lived within two leagues of the forest was brought within the jurisdiction of the forest courts.
Little wonder that Magna Carta sought to bring these practices to an end.
King John had other means of raising money. In time of war the barons were supposed to fight alongside the king, providing knights and foot-soldiers for his army. If they did not provide men, they had to provide money in lieu, known as scutage. In the space of 16 years John levied scutage 11 times, and at an escalating rate.
John’s barons were subject to a scourge called ‘Aids’. These were another form of taxation, levied to enable the king to meet exceptional items of expenditure, such as ransoming a kinsman or providing a dowry for a daughter. John exacted aids as a norm rather than an exception.
Chapter 12 of the Charter provided ‘no scutage or aid shall be imposed in our kingdom unless by common counsel of our kingdom’.
This interdict was to be interpreted imaginatively by the American settlers as ‘no taxation without representation’.
John’s primary object in raising all this money was to build a war chest for a campaign in France designed to recover his French territories, which had been wrested from him by Philip II of France shortly after he inherited the throne in a campaign which earned John the epithets ‘softsword’ and ‘lackland’. Alliances were made and, in 1214, the expedition was finally launched. The campaign was a disaster, culminating in a decisive defeat for the allies at the battle of Bouvines. King John returned to a very disenchanted aristocracy.
Coupled with concern at what was seen as continuous extortion for military adventures for which there was no enthusiasm, there was a resentment on the part of the barons at the way that John governed. I quote from a recent work on Magna Carta by Professor Turner:
“More and more professional royal servants, ambitious ‘new men’, often knights or clerks of obscure origin, became the king’s intimate counsellors with influence rivalling that of the great officers of state” – you may think that there is little new in the world.
And so the barons revolted and the king affixed his seal to Magna Carta. What precisely was behind the pledges in chapters 39 and 40 that no freeman should be arrested or imprisoned ‘except by the lawful judgment of his peers or by the law of the land’ and that ‘to no-one will we refuse or delay right or justice’? It was certainly not a guarantee of the right to trial by jury, for in 1215 no such procedure existed. What was ‘the law of the land’ by which the freeman was entitled to be judged? Not the law to which were subject the vast majority of the population who were serfs, or vileins, obliged to put in hours of work on their land Lords’ estates. The term landlord has survived, but it has a very different connotation today.
If the serfs had any disputes, whether with each other or with their Lord, these would be resolved in the Lord’s own court, the manorial court.
There were also baronial courts where a lord’s knights met together to settle disputes with each other or with him. Was this where a freeman would experience ‘lawful judgment of his peers’?
Henry II had established a central court of justice at Westminster and initiated the practice of sending his judges out on circuit through the counties. Was the law that they administered the ‘law of the land’ to which Chapter 40 referred? Or was it the customary processes of the old shire and hundred courts that still included trial by combat and trial by ordeal? The answer to these questions is not clear and does not matter. One thing is quite clear. Chapters 39 and 40 laid down the principle of the rule of law. They outlawed arbitrary arrest of person or seizure of property.
King John submitted to Magna Carta as a short term expedient to buy time. He did so in bad faith and with no intention of complying with its terms. He wrote secretly to the Pope, in whose favour he now basked, and asked him to annul the Charter. The Pope obliged, sending letters condemning the Charter as exacted by extortion and declaring it to be ‘null and void and of no validity for ever’.
Civil war broke out and John’s health broke down. He died on 18 October 1216. His 9 year old son, Henry III was anointed and crowned king. Within a month his advisers had re-issued Magna Carta, shorn of a number of its clauses. In 1225 Henry put his own seal to a revised version. This came to be treated as the authorised version, and the earlier version of King John was lost from sight. Chapters 39 and 40 of John’s Charter were revised to form Chapter 29 of the new version, and from now on I shall refer to their provisions as Chapter 29.
Edward I is often said to be the father of Parliament and his reign saw the enactment of statutes in which many of the provisions of Magna Carta were incorporated; and in the 14th Century the first petition presented to the monarch by the Commons at each new Parliament was a request that the Great Charter be firmly kept. In the reign of Henry VI Parliament passed a statute reciting the provisions of Chapter 29, and they have remained on the statute book to the present day.
Magna Carta was, however, largely lost from view until, in the 17th Century, it was pressed into use by the parliamentarians as a weapon in their struggle with Charles I.
Sir Edward Coke, attorney general to Elizabeth and James I and later Chief Justice of Common Pleas, and member of parliament, with scant regard for history, extolled Magna Carta as confirming longstanding law and custom and reaffirming liberties that the English people had enjoyed from time immemorial. Coke was largely the author of the Petition of Right, and Chapter 29 formed a central part of this.
Coke and his followers thought, or at least asserted, that Chapter 29 guaranteed pre-existing rights to trial by jury and habeas corpus. In fact, as I have said, there was no trial by jury at the time of King John. As for habeas corpus, this started life in the 14th Century, well after Magna Carta, as a procedural writ to procure the attendance of a person in court. Later it developed to be the prime remedy by which the court would intervene when an individual was unlawfully imprisoned. Thus it gave effect to the principle of Chapter 29 and one can understand the erroneous conclusion that the two were interlinked.
After the execution of Charles I, Oliver Cromwell in his turn was to show scant regard for some of the due processes of law. When opponents appealed to Magna Carta, he commented contemptuously – ‘Magna Farta’. I doubt whether this can be taken as evidence that he was a better historian than Coke.
We have now reached the stage of the founding of the first English settlements on the American Continent.
The settlers took with them Coke’s vision of Magna Carta as embodying the liberty of the individual.
On the restoration of Charles II the speaker of the House of Commons thanked him for ‘restoring to us our Magna Carta liberties’. In 1679 the Habeas Corpus Amendment Act was passed. This ensured that anyone held on a criminal charge was speedily brought before the court. From then on Habeas Corpus became the prime protection of the individual against wrongful imprisonment, embodying in our law the pledge that had been given in Chapter 29.
Ten years later the Glorious Revolution and the Convention Parliament replaced James II with William of Orange and enacted the Bill of Rights that established parliamentary supremacy. It also guaranteed to the people the right to jury trial and the writ of Habeas Corpus. Thus rights, erroneously believed by many to have predated and been recognised by Magna Carta, became firmly entrenched in English statute.
Today some, at least, of our judiciary look on Magna Carta as the corner-stone of our constitution. In a recent decision [Bancoult [2001] 1 QB 1067 at 1095] Lord Justice Laws endorsed this statement:
“this document becomes, and rightly becomes a sacred text, the nearest approach to an irreparable ‘fundamental statute’ that England has ever had. In age after age a confirmation of it will be demanded and granted as a remedy for those oppressions from which the realm is suffering…For in brief it means this, that the king is and shall be below the law.”
Let us cross the Atlantic. Charters granted to the settlers in the new Colonies included guarantees of rights as free English subjects. Coke’s view of Magna Carta as encapsulating these rights was shared by the settlers. The charters of some of the colonies adopted chapter 29 verbatim. And it was William Penn’s view that the 1215 version of Magna Carta provided that there should be no taxation without representation that had a significant influence in fomenting the revolt by the American colonies against English rule. After the Declaration of Independence nine former colonies inserted into their constitutions bills of rights, which incorporated statements resembling chapter 29.
The fifth amendment to the federal Constitution echoes chapter 29 in that it promises that no person shall be ‘deprived of life, liberty or property without due process of law’ and the sixth amendment promises those accused of crimes ‘the right to a speedy and public trial by an impartial jury’.
I have carried out a lexis search and found at least 100 references to Magna Carta in the Supreme Court and 375 in the Federal Courts. In 1884 the Supreme Court in Hurtado v California 110 US 51 said:
“[the] guarantees of due process, though having their roots in Magna Carta’s “per legem terrae” and considered as procedural safeguards against executive usurpation and tyranny, have in this country become bulwarks also against arbitrary legislation”
Quoting from that decision in 1994, 110 years later, the Supreme Court in Albright v Oliver 510 US 266 said that the traditions inherited from English law
“must be held to guarantee not particular forms of procedure but the very substance of individual rights to life, liberty and property”.
Is there justification for departing from the principles of Magna Carta in a time of national emergency?
During the First World War, the Defence of the Realm Consolidation Act 1914 authorised the issue of regulations “for securing public safety and the defence of the realm”. Regulations were passed under which a German born naturalised British subject was interned as an enemy alien without any right to challenge his internment. He was detained for 18 months without trial. The lawfulness of the regulations under which he was detained was challenged in the House of Lords (in R v Halliday [1917] AC 260). The majority of the law Lords held that they were lawful. The Lord Chancellor, Lord Finlay expressed the view that (at 268)
“it may be necessary in a time of great public danger to entrust great powers to His Majesty in Council and that Parliament may do so , feeling certain that such powers will be reasonably exercised.”
In a lengthy and impassioned dissent, Lord Shaw stated his opinion that Parliament had never intended to permit so fundamental a violation of individual rights. He observed (p. 294):
“There is a constructive repeal which has, so far as I am aware, no parallel in our annals – a getting behind the habeas corpus by an implied but none the less effective repeal of the most famous provisions of Magna Carta itself”.
After quoting chapters 39 and 40 of the original charter, he continued:
“If there be any, my Lords, who in this time of storm and stress think these chapters useless reading or their lessons out of date I am not of their number”.
Lord Shaw is not today counted among the leading legal luminaries of his time. In contrast, Lord Justice Scrutton is numbered among the great commercial lawyers of all time. But he it was who remarked that war could not be conducted on the principles of the Sermon on the Mount or Magna Carta.
After the outbreak of the Second World War a Defence Regulation was introduced which provided:
“If the Secretary of State has reasonable cause to believe any person to be… of hostile associations …and that by reason thereof it is necessary to exercise control over him, he may make an order against that person directing that he be detained”.
In 1940, when invasion seemed imminent, nearly 30,000 enemy aliens were detained and some 1800 British subjects. These included many whose loyalty to this country could never have been in doubt. One was Michael Kerr, later Lord Justice Kerr, who was arrested in his tennis clothes after a game at Cambridge and had to live in these for some months, before he was released and given a commission in the RAF.
The Home Secretary, Sir John Anderson, ordered the detention in Brixton prison of a Mr Liversidge under this regulation. Mr Liversidge brought an action for false imprisonment.
The Home Secretary declined to give any explanation as to the basis upon which he asserted that he had reasonable cause to believe that Mr Liversidge was of hostile associations. The issue of whether he could be required to do so was pursued to the House of Lords.
The majority of the House of Lords held that he could not. Once again there was a notable dissent, this time by Lord Atkin. He said ([1942] 2 AC 206 at 244):
“In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law. In this case I have listened to arguments which might have been addressed acceptably to the Court of King’s Bench in the time of Charles I.
I protest, even if I do it alone, against a strained construction put on words with the effect of giving an uncontrolled power of imprisonment to the minister”
Today, the House of Lords have recognised that Lord Atkin’s speech was to be preferred to that of his brethren.
Today similar issues are facing this country and the United States as faced the House of Lords in Liversidge v Anderson. We are party to the European Convention on Human Rights. It is contrary to Article 5 of that Convention to detain any person without trial. However, Article 15 permits derogation “in time of war or other public emergency threatening the life of the nation”. After September 11th Parliament derogated from Article 5. It passed the Anti-Terrorism, Crime and Security Act. That Act permits the Secretary of State to detain without trial a person whom he reasonably believes to be a risk to national security and suspects of being a terrorist. A number of aliens are currently detained pursuant to that power. The Court of Appeal has ruled their detention lawful ( A,X and Y and Others v The Secretary of State for the Home Department [2002] 2 WLR 564), but they have appealed to the House of Lords. It would be quite wrong for me to make any comment on the likely outcome of that appeal.
In Cuba, on a part of the island leased to the United States as a military base and over which it has complete control, there have been detained for some 18 months a large number of men captured fighting with the Taliban. They include British subjects. Three prisoners applied to the District Court of Columbia for a writ of habeas corpus. The court dismissed their claim, ruling that because Guantanamo Bay was outside the sovereign territory of the United States and the claimants were aliens, the court had no jurisdiction to entertain their claims. A British prisoner called Abassi, through his mother, brought proceedings in the English Court.
He asked the Court to direct the Foreign Secretary to intervene with the United States Government on his behalf. The Court rejected his application. He appealed to the Court of Appeal, and I presided on his appeal.
We rejected his appeal on the ground that there was evidence that the Foreign Office was making representations on behalf of British subjects detained at Guantanamo and that, in these circumstances, it would not be appropriate for the Court to intervene. We did, however, make some comments about the legal position of the detainees. We said:
“On the face of it we find surprising the proposition that the writ of the United States courts does not run in respect of individuals held by the government on territory that the United States holds as lessee under a long term treaty.”
We referred to the statement, forty years ago, by Justice Brennan that:
“It is no accident that habeas corpus has time and again played a central role in national crises, wherein the claims of order and liberty clash most acutely, not only in England in the 17th Century, but also in America from our very beginnings and today.”
We said:
“The United Kingdom and the United States share a great legal tradition, founded in the English common law. One of the cornerstones of that tradition is the ancient writ of habeas corpus…The court’s jurisdiction was recognised from early times as extending to any part of the Crown’s dominions…The underlying principle, fundamental in English law, is that every imprisonment is prima facie unlawful…This principle applies to every person, British citizen or not, who finds himself within the jurisdiction of the court…The recognition of this basic protection in both English and American law long pre-date the adoption of the same principle as a fundamental part of international human rights law…For these reasons we do not find it possible to approach this claim …other than on the basis that, in apparent contravention of fundamental principles recognised by both jurisdictions and by international law, Mr Abassi is presently detained in a ‘legal black hole’…
What appears to us to be objectionable is that Mr Abbasi should be subject to indefinite detention in territory over which the United States has exclusive control with no opportunity to challenge the legitimacy of his detention before any court or tribunal. It is important to record that the position may change when the appellate courts in the United States consider the matter.”
A writ of certiorari is currently pending before the Supreme Court. Our comments in Abassi were placed before the Supreme Court in a tactful written brief filed by the Commonwealth Law Association, of which that great jurist Sir Sydney Kentridge, is one of the authors. The Supreme Court has recently determined that it will hear the appeal. Once again it would not be appropriate for me to make any extra- judicial comment in relation to that hearing.
Meanwhile, preparations are being made for the trial of the Guantanamo detainees before a military tribunal in circumstances which, our Government has protested, do not accord with the due process of law.
Those of us who are here today are united in the affection in which we hold the United States and its people. We live in worrying times. It seems to me that the principles of Magna Carta are as relevant today as ever they have been.