Beware the barons

Should you ever find yourself in the Surrey Thames-side town of Runnymede, it may be worth looking out for the monument dedicated to the Magna Carta. What is interesting about the Magna Carta memorial is not so much what it commemorates, as who it is doing the commemorating.

The Magna Carta, signed in 1215, was an English charter limiting the power of the monarch and establishing fundamental rights and legal principles (Gemini AI, reproduced verbatim).

I should point out that the above definition is not entirely accurate but who cares? How important can an English charter from over 800 years ago possibly be? Well, it seems to be important enough for the American Bar Association to have erected the monument in 1957, and to have joined the Princess Royal, Princess Anne (daughter of the late Queen Elizabeth II) in commemorating the 800th birthday of the Charter in 2015.

Question: Where was the Magna Carta signed? Funny-guy answer: "At the bottom." Smart Alec answer: It wasn't signed, it was sealed." Which second answer shows how intelligent artificial intelligence is.

I was a student member of the ABA a few years ago, when I was studying law for a master's degree (LL.M.). Part of the reason I joined was because of the ABA's memorial (which I have yet to see for real). I did not join the UK equivalent. They wouldn't have me, as I am not a professional lawyer. The ABA considers the Charter to be the starting point of freedom under the law, the rule of law and, as such, is one of the sources of American law, justice and democracy. You could say the same about the principle of habeas corpus.

If you ever read any of the Magna Carta, however, you would find it quite uninteresting. It mostly deals with matters of taxation and petty regulation of agriculture and trade in goods. Personally, I think its role in legal history is over-stated. It is one of those things that looks good in history books. The Barons rise up in rebellion against the wicked King John and demand basic rights that lead (after another 700 years) to democracy. Phwaaar!

Question: You are in a room with a rich Attorney, a poor Attorney, and Santa Clause. Someone has stolen your purse. Who was it? Answer below

What the Barons were upset about was mostly to do with the King charging them too much tax and taking away what they considered to be their ancient rights and privileges. Privilege being the operative word, as they had no desire for their rights to be shared with their own tenants or serfs. They also had multiple grievances about the King losing the province of Normandy to France (among other military defeats) and the fallout from a dispute between the King and the Pope, in which the King (and the whole of the church in England) came out worse.

King John of England, who may have considered himself an absolute ruler under God, soon came to learn that his power was by no means absolute. He learnt the most important lesson any leader can learn. As a ruler, his power derived from the support of his most important subordinates. In this case, the Barons. The lesson that John learnt would have to be learnt by other English kings later in history, and by other great rulers around the world. There can be no rule, no taxation, no power, without consent.

I have no real view on whether John was a good King or a bad King. I am not a great believer in monarchy, in any case. But I do know that John spent more time in England, as King, than his brother and predecessor, King Richard I (sometimes known as 'Cœur de Lion', Lionheart) did. Richard, as ruler of Normandy and various other provinces in what is now France, was only interested in the feudal income from his English kingdom. He spent most of his time in his other realms and on crusades. To Richard, England was very much a vassal land. His lion's heart belonged elsewhere.

The crusades were projects of conquest and mass slaughter under the dubious banner of restoring the Holy Land (latter-day Israel, and other territories such as parts of what is now Turkey) to Christian control. Christians, Muslims and Jews, alike, suffered under the Crusades. The Barons already considered they had been taxed enough to fund the Crusades under Richard and were in no mood for further taxes under John. Particularly in light of John's failed Papal diplomacy and military defeats. People tend to be less forgiving of leadership when they are on the losing side.

Answer: The rich Attorney stole the purse. The other two were just figments of your imagination.

So where does habeas corpus come in all this? Well on Friday last, May 9, White House deputy chief of staff, Stephen Miller, told reporters The White House was considering a suspension of habeas corpus. Again, like Magna Carta, who cares about habeas corpus? Isn't it just some lawyer hocus pocus for tricking us all out of our money and for stopping elected officials doing the job they were elected for?

Well, in a way yes. Then again, lawyers in US, and other jurisdictions in the 'common law' tradition such as England and Wales, are quite keen on habeas corpus. It allows them to petition a court to get someone who is held in custody unlawfully, out of that unlawful custody. It is, like one or two principles in the Magna Carta, a fundamental principal of law. Some Republican senators have already expressed concern and the prospect of a suspension.

As to the question of limiting the powers of public officials, as one such official until 2024, I have some experience. I sometimes had to provide a legal defence for certain actions of my department (the UK Ministry of Justice) when challenged by the legal process known as judicial review. Often, colleagues would complain when this happened because they thought the legal challenge was unjustified or the citizen bringing the challenge (often a prisoner) was doing it out of malice. The point I always made was that we live in a democracy (thankfully) in which public officials, high (Government Ministers) and low (at my level), only had those powers that Parliament and Law had granted them. It was for the courts to decide when we may have exceeded that power if a citizen applied for judicial review.

Such fundamental laws as habeas corpus can be suspended in time of invasion or mass insurrection (as occurred in the US during the Civil War). Whether any current crisis in the US is sufficient for government to seek suspension of fundamental legal principles and principles of the Constitution is not for me to say. I will, however, point to legal tradition and world history when I say that rulers who think they can do anything they please, will eventually discover that there are always limits. These limits are often discovered as a result of over-assertive use of wide powers by rulers. If the current Administration believes that its powers should not come under any court's jurisdiction, that its powers should be absolute, it should consider the fate of such past rulers as King John.

Though the Magna Carta itself may have little relevance today, the fact that the Barons were able to force King John (a ruler with absolute power) to come to them and give in to their demands is worth remembering.