Magna Carta – No longer law
Aug 3, 2011Posted by on
From time to time the English resort to the Magna Carta as a source of their rights in Common Law. I happen to think that this is a totally misleading case and, if you will, an old chestnut. It reminds me of the 1926 Rex v Haddock case, when a one Albert Haddock lodged an appeal against what he regarded as a ‘unjust fine’. In a nutshell, a previous court fined Haddock the sum of two pounds plus costs, relating to the parking of a motor-vehicle, with an additional fine of one pound for conducting his defence in ‘rhyming couplets’. Haddock appealed the fine on the basis of the ‘Fourteenth Chapter of Magna Carta. This provides that:
A freeman shall not be amerced [that is; fined] for a small fault, but after the manner of the fault, and for a great fault after the greatness thereof…
Having heard the appeal in the High Court, Mr Justice Lugg concluded that there is no doubt that persons are accustomed to speak loosely of Magna Carta as the enduring foundation of what are known as the liberties of the subject, and to assume that that Charter is as potent a measure today as at the time of its origin. But, he went onto say that this court is not concerned with private or public life but with the law, which has not much relation to either. He further remarked that while among the fourteen [chapters] of Magna Carta that are not definitely extinguished, there are at least as many for the benefit of the Crown as for the benefit of the subject, and the remainder have only a precarious existence, if any.
Mr Justice Lugg then cited the following examples:
If any that holdeth of us lay-fee to die, and our sherrif or bailiff do show letters-patent of our summons for debt, which the dead man did owe to us, it shall be lawful to our sherrif or bailif to attach and inroll all of the goods and chattel of the dead…
Concluding that this laid down very clearly that debts owed Government Departments take precedence over all other debts, and nor would the ordinary citizen extract any satisfaction from;
All weirs from henceforth shall be utterly pulled down in the Thames and Medway, and through all England, but only by the sea coasts.”
Adding that Macauly may well have found inspiration in Chapter 29, that;
To no man will we sell, to no man deny, to no man delay, justice or right.”
But saying that, “We in this court are well aware that these undertakings have very little relation to the harsh facts of experience. It is the whole business of the honourable profession of the Law to sell, delay and deny justice – and many of us wish that we could sell more justice than we do”. Continuing Mr Justice Lugg remarked that in Chapter 30 it is laid down that:
All merchants shall have their safe and sure conduct to depart out of England, to come into England, to tarry in and go through England as well as by land as by water, to buy and sell, without any manner of evil tolls [i.e. extortions] by the old and rightful customs.
Adding that; he would be a bold advocate who contended that this was an accurate statement of the law, or at any rate, the practice of the land today. No man, merchant or no, can depart out of England, come into England, tarry in England, or buy or sell without all manner of tolls, extortions, and hindrances of the Crown, which is very right and proper but it is not Magna Carta.
In summation; Mr Justice Lugg said; “It is argued that at least that portion of Chapter 29 still has effect which reads;
Nor will we proceed against a freeman, nor condemn him, but by lawful judgement of his peers or by the law of the land.
But it was proved in evidence that in fact this method of condemning the freeman is the exception rather than the rule. And in this case I am satisfied that so little of Magna Carta is left that nothing of Magna Carta is left. The appellant has done his country an ill service in raising this point, for but for his rash actions generations of English orators might have continued in the fond belief that Magna Carta was still the abiding bulwark of our liberties, and for that act I shall order him to pay a further fine of five pounds. But it is no part of my duty to conceal the truth, and I am reluctantly compelled to declare that Magna Carta is no longer the law”.
The appeal was dismissed.