The Iredell Lecture 2016

Magna Carta: its Resurrection, 1216-1616

  • This piece was written over a year ago. It may no longer accurately reflect my views now, or may be factually outdated.

NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.

The quietly soft-spoken Sir Baker started things off with a dig at David Cameron, which is a surefire way to ingratiate yourself with almost any given group of Brits these days. The dig revolved around Baker’s initial claim that despite the PM’s semi-recent bluster about teaching every British schoolkid the Magna Carta, the document itself was legally obsolete over 500 years ago. Weeks after King John signed it at Runnymeade, both the King and the Pope repudiated it under the basis that it had been signed under duress (not exactly inaccurate) and was thus legally void.

Baker pointed out that Shakespeare’s King John contains no mention of the Magna Carta. He ran over some of the few cases where it had been mentioned, before positing that legal concepts such as trial by jury were implemented by lawyers of their own volition, before being retroactively ascribed to the Magna Carta.

The central thrust of Baker’s argument was that it wasn’t until the 1580s that section 29 (quoted above) began it’s rise to fame. Section 29 had apparently been singled out by Puritan lawyers as being able to curtail the Court of High Commission, which was condemned as a noxious body – of particular derision was the oath ex officio. Faced with such threats to justice, the bar looked to history for answers. Robert Beale gave a speech against the Court, stating that the laws of England establisheth not an interior jurisdiction of mens hartes and thoughtes.

Between 1527-88, there were eight cases citing section 29. Whilst Queen Elizabeth had once compelled on the basis of “our prerogative, which we will not have argued or called into question”, the bar rejected an alleged prerogative that prejudiced the subject. Eventually, non-Puritan lawyers such as Edward Cooke took up citing section 29. This dusting-off and extension of the Magna Carta was summed up by Edward Cooke in a treatise which said [e]verything anyone has in this word […] to all these things this act extends.

Cooke was accused of getting history wrong, but Baker argued that Cooke was not in the business of writing history – he was a lawyer, and his legal arguments were sound. As the Magna Carta was eventually included in the coronation oath, by this point it had been confirmed over thirty times as sacrosanct, which granted it power.

Baker then argued that much of Cooke’s reinvention of the Magna Carta was complete by the time he was fired, against common perception that the bulk was done afterwards. His conclusion was that it was not words that make law, but how people understand them. To wit: etting history wrong at the right moment is of paramount importance. The Magna Carta is thus more than just words “dragged out of King John on a rainy day in Runnymeade” – it was a rhetorical, magical force more than a legal one, which gained power through the common law of England.

When it came to the questions, the time was almost entirely taken up by some academic’s apparent thesis statement disagreeing with everything Baker had said. In about the sixth minute of its formulation, I overheard another academic near me whisper to his friend asking what the question was about. Answer came there none. When VC Mark E. Smith finally stepped in and called the event to close, the questioner joined the round of a applause with the most sarcastic slow clap I have ever witnessed, and I realised that despite all the airs of respectability and erudition they put on, academics can be children just as anyone else. Judging by some other overheard comments, that view would certainly class as a condemnation by […] judgment of his Peers.

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