12 May 2018

Magna Carta Myths

As part of my research, I uncovered many sources of accidental misinformation but also some examples of what appeared to be disinformation. For example, in her book “Constitutional History of the United Kingdom” published in 2003, Ann Lyon describes the 1215 Magna Carta as purely symbolic, stating that it had been annulled by the Pope very shortly after it was written, which for obvious reasons, which shall be explained later, is incorrect. This book contained other significant errors, including the omission of the 2001 invocation of Article 61 of the 1215 Magna Carta by a quorum of British Lords, sanctioned by Leolin Price QC, which was nothing less than remiss given the historical significance of this event and the extent of research that had gone into the main body of the text. This book is targeted at undergraduates. Why would a publication used in the State's universities be so obviously and fundamentally inaccurate in it's account of the country's ancient common law and Constitution?

The following are examples of the most common myths that can be encountered when researching the validity of the great common law Charters:

Myth No.1 -  The Magna Carta has been repealed

It is often mistakenly thought that the common law Magna Carta has now been mostly repealed by Parliament. However, there are a number of logical reasons why this is impossible.  Parliament was not formed until fifty years after the 1215 Magna Carta and had no part in its compilation, but more significant than that, Parliament is and always has been of a subordinate jurisdiction to the common law.  It is in fact bound by common law.  It therefore cannot make, alter or repeal common laws. 

The confusion about the alleged abrogation of the 1215 common law version of the great charter has arisen because in 1297 the Model Parliament made a statute version of the Magna Carta, a copy of the Magna Carta 'granting' the same rights to the citizens which are already available in common law.  It is ONLY the statute versions, such as the 1297 and 1830 versions, which have been mostly repealed whilst the 1215 common law version remains out of the reach of Parliament and its power-hungry influences.  When the Magna Carta is referred to as a statute, this is due to either clumsy research, ignorance, the casual misapplication of terms, or, in the case of government functionaries and lawyers in recent times, its clearly specious disinformation. 

As Jonathan Gaunt Q.C. said, "Magna Carta [is] not a statute but a treaty.”  Parliament can only repeal statutes and acts, not laws. A repeal of a statute which gives effect to common law does not repeal the underlying common law itself.  The common and constitutional law are higher law with the ability to strike down any bill which has passed through Parliament and which is against common right and reason, which is repugnant or impossible to perform.  See Chief Justice Sir Edward Coke 1628.  These are the most important laws we have and all are beyond the legal reach of Parliament.

Lord Renton said in the House of Lords (recorded in Hansard in 2000) in response to a speech by The Earl Russell on “amending” the Magna Carta 1215. Something parliament cannot do without the fully fledged will of the whole population. The Honourable Lord Renton said: 
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.”  The Earl of Russell then apologetically replied by saying “I spoke loosely and I hope that the noble Lord will forgive me.”
As Alistair MacDonald Q.C., Chairman of the Bar Council of England and Wales stated in the 2015 issue of The Barrister (page 3, pa, 25):
"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."
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
On the 750th anniversary of Magna Carta 1215, Lord Denning, Master of the Rolls from 1962-1982, stated that the 1215 Magna Carta is:
”the greatest constitutional document of all times—the foundation of the freedom of the individual against the arbitrary authority of the despot.” - Denning Law Journal 2015 Vol 27, Magna Carta and Magnanimity.

It is very apparent that this timeless and perpetual document may never be altered but by the explicit full-hearted consent of the people it was designed to protect the Population.

Myth No. 2 – The Magna Carta is invalid as it was signed under duress.

One of the major myths today is that the Magna Carta 1215 was “signed under duress”. Firstly, it wasn’t signed, it was sealed with the Royal Seal.  Secondly – title of the land was then settled by ‘trial by combat’, war!  King John, subject to the law but a lawless tyrant, was in a position where he had been defeated by his own subjects who then had the 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. It was perfectly lawful and arguably too tolerant. The last certain judicial battle in Britain was in Scotland in 1597. 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. The King’s numerous atrocities and unchivalrously gross offences placed him outside the law of the land to which he was already subject and bound by oath.

The “duress” King John would have experienced was no more than that which a murderer would also experience when being arrested. 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 disseizing (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 King John break every kind of moral and lawful obligation binding on a monarch and a man, but he breached his compact (contract) 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 allotments of common land made available for sustenance of a large proportion of the populace. The land was feudally owned, distributed, occupied and worked. Without the concurrence of his nobles, his equals (peers), King John had no authority whatsoever for what he considered his benefit as it was against the interests of the people and the Law of the Land.

The People were not asking King John for rights which they already had, they were merely reasserting them upon him because of his unlawful behaviour and tyranny.  At his coronation, King John had promised and subjected himself by oath to the common law Charter of Liberties ratified by his forebear Henry I and his successors, an oath which he breached. He is lucky to have kept his head.

Myth No.3 – The Magna Carta is invalid because the Pope had it annulled.

It has even been claimed by those resistant to the common law, including within the aforementioned book by Ann Lyons, that Pope Innocent III, as a foreign religious potentate, intervened and claimed authority to annul the British common law rights of the Magna Carta with a papal bull.  These were little more than invalid and conceited delusions of grandeur, clearly beyond his jurisdiction and authority.

In 1213 King John was having a great deal of trouble with the Barons, and the population generally. King John was using foreign mercenaries to suppress the population. He feared for his safety and gave England to Archbishop Pandolph, the Papal Legate, receiving it back again to rule as a vassal King to the Pope for a payment of 1000 Marks a year. John also took on the mantle of a Crusader so that anyone who attacked him would face excommunication.

In 1366 King Edward III received a letter from the Pope asking, again, for the 1000 Marks a year for those years for which it had not been paid, threatening to take action against him if Edward failed to pay. Edward spoke to the Bishops, and the Lords, who spoke to the Commons. First the Bishops, then the Lords, and finally the Commons, came to Edward and they told him that England did not belong to John.  By attempting to hand England to the Pope, King John broke the law. As such, the agreement King John made with the Pope was not valid. The money was not owed and was not to be paid. This constitutional ruling ensures that the Kings of England were not, and can never be, vassal Kings to anyone.  This is a very important constitutional ruling which applies as much today as it did then.

Speaking of this, Lord Kilmuir, the ex-Lord Chancellor who wrote in December 1960, states that “King John’s action in surrendering England to the Pope, and ruling England as a Vassal King to Rome was unlawful 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.”  The constitutional laws and customs of England clearly do not allow any foreign interferences.  As Sir William Blackstone said in 1753, "the legislature of England doth not, nor ever did, recognize any foreign power, as superior or equal to it in this kingdom or as having the right to give law to any, the meanest of its subjects."

King Alfred the Great previously also had to put the Pope back in his place.  King Alfred experienced his father and brother’s rule and had a staunch sense of knowing exactly how to manage rather than rule his Kingdom.  He had made a good choice of candidate for his next Archbishop; however, the Pope didn’t agree with his choice and sent his own from Rome.  Alfred rejected this imposition and returned the Pope’s Archbishop to Rome.  The Roman Archbishop was again returned to King Alfred with the added advice from the Pope that it was he who appointed every king in the world, and if Alfred wanted to remain King he must accept the Pope’s choice of Archbishop.  Alfred stood his ground and told the Pope that he was elected as King by the English and would do what was in their best interest.  This occurrence started England’s refusal to accept any foreign interference in the jurisdiction of its own lands.

Myth No.4 – The common law Magna Carta only applies to Barons

There is also a weak argument that the reaffirmation of the common laws of the land into the great Charters was only intended for the protection of the British barons of the land.  However, upon close examination of the 1215 Magna Carta 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. Common law, by its very nature, does not intend to mislead those it wishes to protect, that is the business of the inferior legal jurisdiction of statutory legislation with its complex, misleading, presumptuous and exclusive use of ambiguous legalese.  If a common law document had been written and intended to have exclusive relevance only to the barons of the land, it would have been clearly addressing the rights of barons only.

Myth No.5 – The common laws of the Magna Carta were granted to the People by the ruling class and can be removed at will.

No monarch has ever had the genuine right to absolute-reign “by the Grace of God” above the rule of common law. The unfounded and megalomaniacal claim of the “divine right of kings” is little more than a self-appointed political and religious doctrine entrained into the public consciousness in history by certain family bloodlines.  The motto "Dieu et mon droit" ("God and my right") remains the motto of the Monarch of the United Kingdom but thankfully very few people are gullible enough to be fooled by it today. 
It is a misconception of folks today to imagine that the feudal monarch was ‘absolute’. Far from it. That was an attribute which came much later in our history under the deranged dogma of the “divine right of kings”! 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 common law of the land. Furthermore, the three hundred great peers of the realm were the king’s equals who possessed the right and duty to try (judge and obtain redress from) the monarch at a common law trial by jury if he breached the common law of the land by defaulting on his obligations and oath.” -D’Oudney, Democracy Defined.
W.C. A History of the English-Speaking Peoples (1956) -
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.”
Chief Justice Henry DeBracton 1250 ruled that the King is beneath no man but he is beneath God and rules England as Gods Lieutenant and according to Gods Laws.  But he is beneath the law for it is by the law that he becomes King.  Charles I was put on trial and executed for his crimes.  Crown immunity is a myth put about by Government.  In England we work on the general assumption that the Monarch is perfect and can do no wrong.  So when wrong occurs, we previously stretched the necks of the Kings' wicked and evil advisors.  Ministers with a misaligned sense of loyalty should take note of that.

Only statutory legislation can be given and taken away at the behest of the State.  Common law is of the People, for the protection of all people.  Common laws are the original human rights, above all other rights, owned by the People as birthright.  The Magna Carta is the great Constitutional charter of human rights.

As detailed in a previous post, the Magna Carta was an important and timely reassertion of the common laws of the 1100 Charter of Liberties, which was itself a reissue of the common laws of William I, which was a reissue of the common laws of Edward the Confessor, which were themselves a reissue of the first book of English Constitutional Law, the Dome promulgated by King Alfred the Great in 886.  It is worth repeating that none of these documents granted anything new, they were simply restating and reasserting the People's pre-existing common laws of the land.