Magna Carta and the Origins of Public Law

This article sets out the history of the public law, from the promulgation of the Magna Carter till its progressive repeal.

The emergence of that body of jurisprudence which deals with the relationship between the ruler and the ruled that has come to be known in the common law tradition as public law, is often traced back to the Magna Carta or the Great Charter of 1215. This document, written in Latin and bearing the royal seal of King John I of England, is the earliest recorded example of a statute that explicitly sought to limit the power of the sovereign over (in this case a somewhat limited) group of his or her subjects.

Despite its rather limited ambit - applying primarily to members of the aristocracy and clergy - the Magna Carta was nevertheless a revolutionary document enshrining for the first time such important legal principles as: (i) due process: 'No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land'1; (ii) justiciable cause: 'In future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it'2; and (iii) habeas corpus: 'In future nothing shall be paid or accepted for the issue of a writ of inquisition of life or limbs. It shall be given gratis, and not refused.'3

It is for these reasons that in 1956, Sir Winston Churchill is purported to have said of the Magna Carta:

... here is a law which is above the King and which even he must not break. This reaffirmation of a supreme law and its expression in a general charter is the great work of Magna Carta; and this alone justifies the respect in which men have
held it.4

In the years and centuries that followed its promulgation, the impact of the Magna Carta waxed and waned alongside the shifting balance of power between the crown, aristocracy and clergy. In 1297, King John's grandson, Edward I, formally incorporated the Charter into English law. For the next two or so centuries the liberties guaranteed by the Charter were more-or-less observed although there is little evidence that the document itself was considered to be anything more than a statute with limited application. Following the Wars of the Roses5 and the reassertion of the powers of the Crown under the Tudor dynasty,6 the Magna Carta once again began to attract attention. As first one and then another of its provisions were ignored in the drive to consolidate the power of the Crown7, some scholars began to argue that the common law as most famously embodied in the Magna Carta ought to have primacy over statute. The most famous exponent of this view was the jurist and politician Edward Coke8 (pronounced 'cook') who proclaimed that the 'Magna Carta is such a fellow, that he will have no sovereign'.9 Moreover, earlier in his career and acting in his capacity as Chief Justice of the Court of Common Pleas, Coke ruled in Dr Bonham's Case (1610)10 that:

... it appears in our books, that in many cases, the common law will control acts of parliament, and sometimes adjudge them to be utterly void: for when an act of parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such act to be void; and, therefore, in ... Thomas Tregor's case [Judge] Herle said, some statutes are made against law and right, which those who made them perceiving, would not put them in execution.

Although the precise impact of Dr Bonham's Case as precedent for the primacy of the common law over statute remains the subject of scholarly debate, the question is now of only limited historical significance. The Glorious Revolution of 1688 which removed James II from the thrones of England and Scotland and replaced him with his daughter Mary and her husband William of Orange, settled the matter conclusively in favour of statute. The Glorious Revolution was triggered by the efforts of King James II to assert the Divine Right of Kings11 and rule without the consent of Parliament. In this regard, therefore, it had nothing to do with directly settling questions of primacy between the common law and statute. However, by establishing the principle of the supremacy if not yet the sovereignty of the Crown in Parliament, it effectively asserted the primacy of Acts of Parliament over all other forms of law or custom.

Thus begins a period in English legal history where public law was gradually but quite effectively relegated to the exercise of judicial review of secondary legislation and administrative procedures. This is not to deny the importance of such legal remedies. However, this was a far cry from the early promise of the Magna Carta to create a 'supreme law' which would bind the sovereign whether he or she be monarch or parliament. Notwithstanding the clarity of the principle that Acts of Parliament have primacy over the common law, it was not to be until 1828 that a specific clause of the Magna Carta was actually repealed. 12

The myth having thus been shattered, the Magna Carta was progressively repealed until only a handful of its provisions still remain in force today.

Notwithstanding the demise of the Great Charter and the apparently complete victory of parliamentary sovereignty, it was to be the believers in a 'supreme law' who would have the last laugh as a result of one of those ironies which history excels at producing. The original Magna Carta was forced upon King John by a revolt amongst his barons, bishops and abbots, the most powerful of whom resided in the King's French dominions.13 The Magna Carta was thus arguably a continental import into English law that for centuries acted as the de facto constitution of England. And it would be another continental import this time of far greater extent and significance that would once again suborn sovereignty to a higher law. In a series of landmark judgments, the European Court of Justice established first the primacy of European over national law14 and then its direct applicability without the need for enabling legislation.15 Perhaps more significantly from the point of view of public law, in a series of cases that can only be described as judicial tai chi, the European Court of Justice incorporated the European Convention on Human Rights into European law and jurisprudence.16 In this way, therefore, England found itself once again acquiring a 'supreme law' imported from the European continent.

Stavros N Yiannouka17
Lee Kuan Yew School of Public Policy
E-mail: sppsy@nus.edu.sg

1 Translated text by GRC Davis, Magna Carta, Revised Edition, British Library, 1989, reproduced at Portico the online portal of the British Library.

2 Ibid.

3 Ibid.

4 Winston Churchill 1956, on the presentation of a 1297 copy of the Magna Carta to the United States of America. Quote reproduced by the US National Archives and Records Administration where the charter is on display.

5 Fought 1455-1485 between rival claimants to the English throne and their respective supporters, the Wars of the Roses represented the high point of aristocratic power and privilege relative to that of the Crown.

6 1485-1603; the Tudor dynasty began with the ascent to the throne of Henry Tudor who became Henry VII and ended with the death of Elizabeth I the Virgin Queen.
7 Perhaps the most egregious and historically significant violation concerned the expropriation and later abolition of the monastic orders by Henry VIII notwithstanding the fact that Art 1 of the Charter guarantees 'that the English Church shall be free, and shall have its rights undiminished, and its liberties unimpaired'. At the time, Henry VIII and later his successors argued that liberties guaranteed by Art 1 of the Charter were limited to the election of the Archbishop of Canterbury.

8 Sir Edward Coke (1552-1634) was a jurist and politician during the reigns of Elizabeth I and James I serving as Speaker of the House of Commons, Attorney General and Lord Chief Justice.

9 Debate in the House of Commons (1628-05-17).

10 8 Co Rep 107a.

11 The Divine Right of Kings was a set of ideas favoured by European monarchs in the 16th-19th Centuries to justify absolute monarchy. Broadly speaking, the monarch as a direct representative of God could exercise absolute power over his or her subjects without reference to any higher temporal authority.

12 Clause 39 was repealed by the Offences Against the Person (England) Act 1828.

13 At the time, the English Kings were also contemporaneously Dukes of Anjou, Aquitaine and Normandy, all of which were notionally territories under the King of France.

14 Flaminio Costa v ENEL (1964) ECR 585 at 593.

15 Van Gend & Loos (1963) CMLR 105.

16 Gabrielle Defrenne v Societe Anonyme Belge de Navigation Aerienne Sabena (1978) ECR 1365.

17 Stavros Yiannouka is a Vice-Dean at the Lee Kuan Yew School of Public Policy. His areas of interest include leadership, history and geopolitics. Stavros is also a solicitor and has been a member of the Law Society of England and Wales since 1995.