There has been much rhetoric in recent months about the validity and efficacy of Ch.61 Magna Carta 1215 and whether or not it has any relevance in modern law practise, that it had been “signed under duress” and that Pope Innocent III even effectively annulled it. We have been subjected to a number of arguments from both solicitors and law students who are of the opinion that MC1215 is an arcane law with no modern relevance or effect. It should be pointed out that law degrees have not included constitutional law as a mandatory subject of study or examination since the mid-1970’s in Britain and consequently lawyers are very poorly trained in the subject.
If MC1215 were irrelevant, why would Leolin Price Q.C. have sanctioned the petition to the Queen, delivered 8 February 2001? This petition then led to Article 61 being invoked the following month. Surely if Magna Carta was void of relevance, such an educated practitioner of law would not have agreed it as both timely and relevant, not to mention legally sound? Surely the Queen would not have responded to it (however inappropriately) but rather simply ignored it as void.
For this reason we feel it is now appropriate to bring attention to Halsbury’s vol 44 entry on constitutional Acts. Pay particular attention to the fact that Magna Carta 1215 is expressly cited – and the notable absence of the largely repealed 1297 Act.
One of the commonly cited arguments is that Magna Carta is “largely symbolic” and not arguable in court. Let us see what Halsbury’s says about this, too:
(iii) Particular Types of Statute
CONSTITUTIONAL, TREATY AND FINANCIAL ACTS
The British Constitution is said to be ‘unwritten’. This only means that, unlike most countries, the United Kingdom does not possess a single comprehensive constitution and much of its constitutional principle is embodied in the common law. There are nevertheless a number of historic statutes regarded as embodying and setting forth the state’s constitutional principles 1. Any modern Act which amends or adds to these may also be regarded as a constitutional Act 2. The main significance of classing an Act as a constitutional Act lies in the nature of the interpretative criteria which then apply to it. In particular, the rights the Act confers, having the quality of constitutional rights, will be regarded by the courts as fundamental and not to be displaced except by clear words
1 See eg Magna Carta (1215); the Bill of Rights (1689); the Act of Settlement (1700); the Septennial Act 1715.
As you will see from the final sentence, Halsbury’s does not consider Magna Carta to be ‘largely symbolic’ but rather fundamental to the courts.
The introduction section of The Cabinet Manual of 2011 (vol. 1, pg 10) also clearly recognises Magna Carta 1215 and not the heavily repealed 1297 Act:
“The UK constitution
4. The UK does not have a codified constitution. There is no single document
that describes, establishes or regulates the structures of the state and the way in which
these relate to the people. Instead, the constitutional order has evolved over time and continues to do so. It consists of various institutions, statutes, judicial decisions, principles and practices that are commonly understood as ‘constitutional’.
5. Constitutional matters and practices may include:
• statutes, such as Magna Carta in 1215; the Bill of Rights and Scottish Claim of Right Act in 1689; the Acts of Union …”
If in doubt about the authenticity of the validity of Magna Carta and the Bill of Rights, the Thoburn judgment has clearly described these as “constitutional statutes” which are “immune from implied repeal.” This means that no legislation subsequently enacted can in any way alter their legal efficacy. Remember, Magna Carta 1215 pre-dates parliament and therefore it has no authority to abrogate or repeal it.
The Bill of Rights binds successive parliaments, whether they like it or not. Often one argument proffered is that no legislation can bind successive parliaments however if you read the Human Rights Act 1998, you will see it does exactly this, nullifying that very argument! Whilst parliament may repeal the HRA, removing that binding, they may not repeal Magna Carta 1215 or the Bill of Rights which makes them binding in perpetuity.
This indeed explains the comments made by Lord Renton in the House of Lords in 2000 (recorded in Hansard) in response to a speech by The Earl Russell. The Honourable Lord Renton stated:
”My Lords, before the noble Earl sits down, perhaps I may mention one point in relation to his fascinating speech. He suggested that we should amend Magna Carta. We cannot do that. Magna Carta was formulated before we ever had a Parliament. All that we can do is to amend that legislation which, in later years when we did have a Parliament, implemented Magna Carta.”
Lord Ashbourne, a Conservative hereditary peer said in 2001 before Article 61 was invoked:
“These rights may not have been exercised for 300 years but only because they were not needed. Well, we need them now. They may be a little dusty but they are in good order.”
Alistair MacDonald QC, Chairman of the Bar Council of England and Wales spoke on the subject in an issue of ‘The Barrister’ (page 3, pa, 25):
“I am convinced that the principles enshrined in Magna Carta are as important today as they were in 1215. It is a terrible irony that, as we celebrate Magna Carta, it is being undermined by an executive which pays lip service to its principles. If the legacy of Magna Carta is to last another 800 years, it requires everyone with a sense of history and an understanding of the critical importance of the rule of law to our society to stand up and fight for it. The liberties conferred by this great document were hard won. We owe it to posterity to ensure that they are not lost in our time.”
The House of Lords Records Office confirmed in writing as recently as 2009 that Magna Carta, signed by King John in June 1215, stands to this day. Home Secretary Jack Straw said as much on 1 October 2000, when the Human Rights Act came into force.
Halsbury’s Laws of England says:
“Magna Carta is as binding upon the Crown today as it was the day it was sealed at Runnymede.”
Magna Carta 1215, Clause 61 was invoked by a correctly constituted committee of the barons on 23 March 2001 and remains in effect to this very day. If everyone in the UK Stood Under it, we could take back control of the country from the psychopaths that believe they rule it.
“Here is a law which is above the King and Parliament, and which even He and They must not and may not legally break. And in the event they or anyone else were to try to abrogate it, such attempt at abrogation shall have no force nor effect and can be safely ignored with no legal ill effect. In addition, in the event of successful attempts at abrogation of such liberties, customs, or rights, the King has commanded and do hereby compel any and all subjects to swear oath to join the barons to assail the properties and persons and families of those [. . . .] who had successfully completed such abrogation, including but not limited to that of the individual Members of Parliament who had voted in favour of any such successful attempts at abrogation. 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.”
[Churchill, A History of the English Speaking Peoples (1956)]
In times past, words and their meaning had value and were fully respected. Sir Robert Howard, a member of the Convention Parliament, and of the drafting committee for the Bill of Rights, wrote
“The people have always had the same title to their liberties and properties that England’s kings have had unto their crowns. The several charters of the people’s rights, most particularly the Magna Carta were not grants from the King, but recognition’s by the King of rights that have been reserved or that appertained unto us by common law and immemorial custom.”
On the Magna Carta 1215’s 700th anniversary, in 1915, the Scottish legal scholar William McKechnie called the Charter:
“a clear enunciation of the principle that the caprice of despots must bow to the reign of law; that the just rights of individuals, as defined by law and usage, must be upheld against the personal will of kings”
In a mock trial on 31 July 2015 for the 800th anniversary of Magna Carta 1215, at Westminster Hall, the Magna Carta Barons were charged with Treason for their involvement in the sealing of Magna Carta in 1215. A unanimous verdict of Not Guilty was returned by the Hon. Justice Stephen Breyer, Lord Neuberger, President of the UK Supreme Court, and Dame Sian Elias, Chief Justice of New Zealand.
Why wasn’t the 1297 Act of Parliament Magna Carta celebrated in 1997? Furthermore, why wasn’t the 1217 version celebrated this year? (2017) Why is the only version being celebrated the original reaffirmation of the charter of liberties, the peace treaty, Magna Carta 1215?
Signed Under Duress?
Firstly it wasn’t signed (as people say ‘with VC’) it was sealed with the royal seal. And secondly – title of the land was then, and still is lawfully today, settled by ‘trial by combat’. The type of duress was perfectly lawful. Trial by combat is still an unrepealed law to settle land title today. If we are conquered in war for example. John (a lawless king) was in a position where he had been defeated by his own subject who then had right to title of the land. However the barons allowed John to keep the throne if certain laws were put into place to protect the people. Perfectly lawful.
Some will tell you that because he sealed it under duress it isn’t valid, which is complete rubbish! He had a choice, face revolt and civil war or stop being such a tyrant. He would certainly have lost the crown if it had gone to war.
According to feudal protocols, the king was at all times subject and bound under the Common Law terms of his coronation oath to uphold the Law of the Land, legem terrae. The king’s numerous atrocities and unchivalrous gross offences placed him outside the Law of the Land to which he was already subject and bound by oath. The “duress” King would have used was that which a murderer would also use when being imprisoned.
Throughout John’s vicious rule and leading up to the confrontation with the people’s just forces of law and order, he mercilessly inflicted what we would call today, ‘a reign of terror’: widespread injustice, acts of disseizin (unlawful dispossession of property) at the hands of his lawless government justices; of his mercenary forces committing acts of homicide, wanton butchery, torture, the cutting-out of tongues, the putting out of eyes, the slitting-off of ears and noses, of robbery, rapine, extortion and depredation; in short, inhuman criminal misrule by outlaws led by a robber king.
Not only did John break every kind of moral and legal obligation binding on a monarch and a man, but he breached his compact (ie, ‘contract’ or constitution) with his equals, the nobility – and with all other parties to the feudal agreement which comprised the entire population, including the land-holding freemen, churchmen and commoners who shared wide alloments of common land made available for sustenance of a large proportion of the populace.
The land and nation was feudally ‘owned’, distributed, occupied and worked. Without the concurrence of his nobles, his equals (peers), King John had no authority whatsoever to make treaties with anyone – popes notwithstanding – for what he considered his benefit, against the interests of the people and the Law of the Land.
Didn’t Pope Innocent III Declare that the Magna Carta was “null, and void of all validity for ever”?
Yes he did. But what authority did he have over it?
The constitution clearly does not allow Roman Catholicism (and/or papists) to have ANY jurisdiction within the realm of England, or over the Sovereign. What authority does the pope have over our land and our monarchy? The Magna Carta, Declaration and Bill of Rights has clauses built in that make it impossible specifically for ANY foreign ruler to have power over the King/Queen.
Lord Kilmuir also spoke on the authority of papists over the sovereign nation of England:
“the ruling given to King Edward 3rd in 1366 in which he was told that King John’s action in surrendering England to the Pope, and ruling England as a Vassal King to Rome was illegal because England did not belong to John he only held it in trust for those who followed on. The Money the Pope was demanding as tribute was not to be paid. Because England’s Kings were not vassal Kings to the Pope and the money was not owed.”
Clause 63 of the Magna Carta 1215 declares that:
“IT IS ACCORDINGLY OUR WISH AND COMMAND . . . that men in our kingdom shall have and keep all these liberties, rights, and concessions, well and peaceably in their fullness and entirety for them and their heirs, of us and our heirs, in all things and all places for ever.”
It is clear that if ANYONE tried/tries to take these liberties and freedoms away or destroy their principles, their actions would be void and would fall as null with no effect. In other words, any attempts to reduce the rights, freedoms and liberties enshrined in the constitution would be ultra vires.
The sixty-first clause, one of the most important in the Charter, which was pressed on King John at Runnymede, allowed in 2001, subjects of the realm to present a quorum of 25 barons with a petition, which four of their number then have to take to the Monarch, who must accept it. It was last used in 1688 at the start of the Glorious Revolution.
Ashley Mote of the Magna Carta Research Society stated in January 2000 that:
“Magna Carta is a treaty, not an Act of Parliament. As we understand it, Magna Carta, like all treaties, cannot be repealed. As a contract or covenant between sovereign and subjects, it can be breached only by one party or the other, but even in the breach it still stands. It is a mutual, binding agreement of indefinite duration. Any breach merely has the effect of giving the offended party rights of redress.”
The present Queen also referred to Magna Carta as a peace treaty in a speech in New Zealand in 1997.
Magna Carta is an affirmation of common law based on principles of natural justice. These principles – and the document itself – pre-date Parliament.
Although the Magna Carta 1215 does indeed pre-date parliament by some 50 years it was subsequently enacted in 1297 with the passage of Edward 1’s Confirmation of the Great Charter Act,
which included the words:
“And we will that if any judgement be given henceforth contrary to the points aforesaid by the justices or by any other (of) our ministers that hold plea before them against the points of the charters it shall be undone and holden for nought.”
The text later includes words to the effect that the “charter of liberties shall be kept on every point.”
This admonition was repeated at the Coronation of the young Henry III:
“…it shall be lawful for everyone in our realm to rise against us and use all the ways and
means they can to hinder us…that each and every one shall be bound by our command…so
that they shall in no way give attention to us but that they shall do everything that aims at our injury and shall in no way be bound to us until that in which we have transgressed and
offenced shall have been by a fitting satisfaction brought again in due state….this having been done let them be obedient to us as they were before.”
Indeed, in 1661, one of His Majesty’s Justices of the Peace told a grand jury:
“If Magna Carta be, as most of us are inclined to believe it is, …unalterable as to the main, it is so in every part.”
Of course, in recent times, the House of Commons has frequently attempted to interfere with the constitution. An attempt was purportedly made to repeal Magna Carta in 1969, when the Statute Laws (Repeal) Act was sneaked through parliament during the moon landings.
It repealed Edward 1’s Confirmation of the Great Charter Act of 1297 – but it did not repeal Magna Carta itself. Yet again, as we understand the legal position, a repeal of a statute which gives effect to common law does not repeal the underlying common law itself. Neither does the distance in time between the two events have any bearing.
The limitations of royal prerogative are clear. The Lord High Chancellor Command Paper 3301, 1967, Legal and constitutional implications of UK membership of the European Community clarified that:
“No prerogative may be recognised that is contrary to Magna Carta or any other statute, or that interferes with the liberties of the subject. The courts have jurisdiction therefore, to enquire into the existence of any prerogative, it being a maxim of the common law that the king ought to be under no man, but under God and the law, because the law makes the king. If any prerogative is disputed, the courts must decide the question of whether or not it exists in the same way as they decide any other question of law. If a prerogative is clearly established, they must take the same judicial notice of it as they take of any other rule of
If in doubt about the authority of Magna Carta, here’s a speech given to both Houses of Parliament in 1628 by Sir John Glanville, this contribution prevented the Tyrannical clause “by Sovereign power” from being in the final draft of the Petition of Right:
“…My lords, as there is mention made in the additional clause of sovereign power, so is there likewise of a trust reposed in his Majesty, touching the use of sovereign power. The word “Trust” is of great latitude and large extent, and therefore ought to be well and warily applied and restrained, especially in the case of a king: there is a trust inseparably reposed in the persons of the kings of England, but that trust is regulated by law. For example, when statutes are made to prohibit things not mala in se, but only mala quia prohibita, under certain forfeitures, and penalties, to accrue to the king, and to the informers that shall sue for the breach of them; the Commons must and ever will acknowledge a regal and sovereign prerogative in the king, touching such statutes, that it is in his Majesty’s absolute and undoubted power to grant dispensations to particular persons, with the clauses of non obstante, to do as they might have done before those statutes, wherein his Majesty, conferring grace and favour upon some, doth not do wrong to others.
But there is a difference between those statutes, and the laws and statutes whereupon the petition is grounded: by those statutes the subject has no interest in the penalties, which are all the fruit such statutes can produce, until by suit or information commenced he become entitled to the particular forfeitures; whereas the laws and statutes mentioned in our petition are of another nature; there shall your lordships find us rely upon the good old statute, called Magna Charta, which declareth and confirmeth the ancient common laws of the liberties of England: there shall your lordships also find us to insist upon divers other most material statutes, made in the time of Kings Edw. III. and Edw. IV., and other famous kings, for explanation and ratification of the lawful rights and privileges belonging to the subjects of this realm: laws not inflicting penalties upon offenders, in malis prohibitis, but laws declarative or positive, conferring or confirming, ipso facto, an inherent right and interest of liberty and freedom in the subjects of this realm, as their birthrights and inheritance descendable to their heirs and posterity; statutes incorporate into the body of the common law, over which (with reverence be it spoken) there is no trust reposed in the king’s “sovereign power,” or “prerogative royal,” to enable him to dispense with them, or to take from his subjects that birthright or inheritance which they have in their liberties, by virtue of the common law and of these statutes.
But if this clause be added to our petition, we shall then make a dangerous overture to confound this good destination touching what statutes the king ia trusted to control by dispensations, and what not; and shall give an intimation to posterity, as if it were the opinion both of the Lords and Commons assembled in this Parliament, that there is a trust reposed in the king, to lay aside by his “sovereign power,” in some emergent cases, as well the Common-Law, and such statutes as declare or ratify the subjects’ liberty, or Confer interest upon their persons, as those other penal statutes of such nature as I have mentioned before; which, as we can by no means admit, so we believe assuredly, that it is far from the desire of our most gracious sovereign, to effect so vast a trust, which being transmitted to a successor of a different temper, might enable him to alter the whole frame and fabric of the commonwealth, and to resolve that government whereby this kingdom hath flourished for so many years and ages, under his Majesty’s most royal ancestors and predecessors.”
Wasn’t Magna Carta only exclusively for the barons?
In a short answer, no. Throughout the manuscript of the Magna Carta 1215, there are the frequently used words; “No man”, “all men”, “free men”, “welshmen”, “person”, “whole community of the land”, “anyone”, and “Any man”. It also refers to a baron as a “baron” and nothing other, their roles are very specific within the protocols of Magna Carta 1215. And are not referred to as anything other than barons. For example:
Clause 16 says: “No man shall be forced to perform more service for a knight’s ‘fee’, or other free holding of land, than is due from it.”
Clause 39 states; “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 way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.”
If a free man is a baron, then why does it not state that “no baron” shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in anyway? Whilst Clause 46 says that “All barons who have founded abbeys, and have charters of English kings or ancient tenure as evidence of this, may have guardianship of them when there is no abbot, as is their due.” Should it not say All “free men” if this is the case?
Clause 40 states “To no one will we sell, to no one deny or delay right or justice.”
Clause 56 recognises that “If we have deprived or dispossessed any Welshmen of land, liberties, or anything . . . without the lawful judgment of their equals, these are at once to be returned to them.”
Clause 62 says
“We have remitted and pardoned fully to all men any ill-will, hurt, or grudges that have arisen between us . . .”
We can find no evidence at all that suggests that “all men”, “free men”, “welshmen”, “person”, “whole community of the land”, “anyone”, and “Any man” exclusively refer to the Barons. Nor is it apparent whatsoever that the Magna Carta 1215 only included the barons. Yet to this day, a tyrannical regime still denies these rights to not all, but most people within the country picking and choosing on the basis that MG1215 is “not for the people.” How strange.
In a case of 2015 which followed on until 2017, former foreign Secretary Jack Straw (a man who admitted that Magna Carta still stood when the HRA came into force) and former senior MI6 officer, Sir Mark Allen had a case brought against them under Magna Carta for being unlawfully involved in the illegal rendition of a Libyan man and his pregnant wife to Gaddafi’s Libya in 2004.
In November 2015 an appeal was made in defence of their actions and why the case shouldn’t be heard. In this case Lord Mance, quoting from Magna Carta, said: “No free man shall be taken, or imprisoned, or dispossessed, of his … liberties … or be outlawed, or exiled, or in any way destroyed … excepting by the legal judgment of his peers, or by the laws of the land.”
In the following case heard on the 17th of January 2017 the the seven Supreme Court judges unanimously dismissed the Government’s appeal, concluding that the claims that they were unlawfully involved.
The person(s) who brought the case against Jack Straw and Mark Allen was Mr Belhaj and Mrs Boudchar who were both subject to inhumane torture. Mr Belhaj is in no way a Baron. So that is further evidence that it is not as some might say, “not for the people.”
Sapna Malik, from the international team at law firm Leigh Day spoke on the case:
“The Supreme Court today has delivered an emphatic judgment upholding the rule of law, particularly in the face of breaches of rights recognised as fundamental by English statute and common law, in which British Defendants are alleged to have been complicit.”
Mr Jack Straw concluded very recently on his case:
“The rule of law does require us to accord rights to some very unpleasant people, which those people – terrorists and serious criminals, readily deny others. As the threat rises, there may a temptation to allow the end – public safety, national security – to justify the means used, and bypass long establish rights. It’s a temptation we have to resist. It’s easy to grant rights to those who will respect the rules in any event. More difficult to those who are intent on breaking every rule. But that’s the test of a free democratic society, of all living by good law – a journey which started, not far from here, 800 years and one day ago.”