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Magna Carta's spotlight on today's political arbitrariness

  • 17 June 2015

Few documents in the realm of liberties warrant as much discussion as the Magna Carta, and three choice clauses remain valid and continuous.

The charter enshrined the autonomy of the English Church in its first provision. Provisions also make reference to the core principle of justice – 'To no man will be sell, or deny, or delay, right or justice' (Clause 40).

Most famously, in clause 39, it is stated that, 'No free man shall be taken or imprisoned or dispossessed, or outlawed or exiled, or in any way destroyed, nor will we go upon him, nor will we send against him except by the lawful judgment of his peers or by the law of the land.'

It is a stunningly direct statement on the value of the jury, and the role of judicial scrutiny, both of which have been gnawed at over the centuries.

Much of the charter that assumed relevance was not the Runnymede version of 1215 but 1297, when it was entered into the statute books by Edward I. (Australia, incidentally, possesses one of four copies of that version.) There were four original versions – that of 1215, followed by 1216, 1217 and 1225. 'It is never enough,' argued the jurist Frederick Maitland in his constitutional history of England, 'to refer to Magna Carta without saying which edition you mean.'

Underlying it was a transformation of the feudal world. King John needed income in a money economy that was shrinking royal revenues. Agricultural prices were rising, and mercenaries were coming into vogue. The squeeze, alleviated by a range of revenue raising measures, prompted a noble revolt.

What it became, distilled over time, was something of a legal weapon, a charter of liberties that also bound rulers, modifying the ambit of executive power with an assortment of protections. The exercise of power, in short, entails accountability. Sir Edward Coke, as Chief Justice, took it as a foundational document in challenging the rule of the Stuart kings, establishing principles such as the supremacy of Parliament while targeting the notion of absolute monarchy. King Charles I would be facing its stern tones in his trial in 1649. Accountable power, it would seem, or death.

The Magna Carta is, however, easy to romanticise with legal whimsy. Within the dying feudal system, it would have been impossible to have imagined such a document applying to most of the social strata of the time. It was deeply conservative, echoing the