After reading a news story a few days ago about a bizarre attempt in the New Hampshire legislature to require laws to conform to the Magna Carta, I got around to reading through the thing. It’s pretty interesting as a forebear of our modern concept of rule of law and a separation of powers. I did, however, find myself quite confused when I got to Section 48, which reads;
I found this turn of phrase quite curious and a little ominous. My knowledge of medieval English history is a bit spotty, but from what I can gather, forests in King John’s day were governed separately from cities and had different legal powers, from which I gather some sort of controversy must have arisen. (The previous section orders the abolition of all forests that had been established during John’s reign.) What specific “evil customs” were afoot in the forests that needed to be abolished?
The Wikipedia article on Royal forest describes the forest laws brought in by William I to protect his hunting rights in the royal forest:
The Magna Carta was primarily about reducing royal prerogatives in favour of the barons and their vassals, and clearly the barons had concerns about the king’s courts and game wardens severely punishing people for breaking these forest laws.
think about the background to the Robin Hood stories - people being hanged for killing a deer in the royal forest, or being punished for gathering firewood from the forest, even in dire need in winter.
but, I’m curious about your introduction - what the heck is New Hampshire up to with Magna Carta? can you give us a link?
That story is just bizarre. Had those guys read Magna Carta?
Some scholars have suggested that instead of being called the “Great Charter of Liberties” it should be referrred to as the “Great Charter of Baronial Privileges”.
And what about the disseised Welshmen (c. 57)? how many New Hampshire laws will deal with disseised Welshmen? will no-one think of the disseised Welshmen?
IANAL, but isn’t the Magna Carta a living document, in that it is both enforced and amended? True, most of the changes are where a clause is no longer valid, but it seems like someone in England could have a field day, writing in clauses that could then find their way into New Hampshire legislation.
Um, no. Perhaps you are thinking of the U.S. Constitution.
Magna Carta is neither amended nor, in any meaningful way, enforced. It is important because it was a major early landmark in the long and slow historical evolution of the British Constitution, that is all. The British Constitution is considered to be essentially an unwritten set of customary practices (although some written statutes that are still in force are also important parts of it). Although it is perhaps not impossible that Magna Carta might be invoked in some British court case, the likelihood of that ever happening in practice (at least as more than a rhetorical flourish) seems remote.
This, of course, just underlines the bizarreness of this New Hampshire initiative. To think, these are the people who get more say than anyone in who is going to be president!
The issue was, as others have noted, the use of “forest laws” as a tool of creeping royal oppression - this was hated by nobles and commoners alike. At one point some absurd percentage of England was declared “royal forest” and thus subject to a set of laws designed to give the King the advantage - it was a way of, essentially, expropriating rights. Imagine in the President declared your neighbourhood a “presidential park” and then charged you for living there.
Many kings in turn had promised to amend these laws (when in trouble and needing support) and had immediately gone back on said promises (when support no longer required).
The Magna Carta was just one example in a long line of similar pronouncements. However, it became the best-known example.
[As to practical impact - as soon as John was out of the clutches of his angry barons, he got the Pope to annul it as coerced! Which goes to show that formal legality isn’t everything … ]
Ignore this if it’s too far off-topic, but how the heck do you govern based on an unwritten constitution? How do you settle disputes, if two people disagree on the meaning of a particular point?
“Particular points” with disputable meanings really only exist in the context of a written constitution. How do you Americans deal with that (especially when it is something written over 200 years ago, sometimes in vague and rather archaic language, and in very different social and political circumstances)?
Frankly, I do not really know how the British Constitution manages to function, but in practice it seems to work fairly well. In practice, surely, all governmental systems, whether they have written rules or not, depend on the tacit willingness of those involved to go along with “the way things are done”. It is not that obvious that written rules always help. It is America, not Britain, that is starting to look like an ungovernable country these days.
Nah, they exist in systems with no constitution and in systems where nothing is written down. So, in any legal system, whether it’s written or not.
But yeah, you don’t need to have a constitution to have a legal system, and you don’t need to have things in writing to have one, either. Unwritten legal systems have worked and continue to work; written legal systems without a constitution have worked and continue to work.
The UK has written laws, it isn’t like their whole system of government is unwritten. Most people know it isn’t correct to say the UK has no constitution, nor is it correct to even say it doesn’t have a written constitution. It is rather correct to say that there is no singular “plan of government” ala America’s constitution, but there are many written acts of Parliament, court decisions and etc stretching back hundreds of years that form a legal framework that lawmakers, judges, and lawyers can use.
For instance, the UK is governed by a Parliament, composed of Crown, Lords and Commons. You can find a variety of laws governing who is the monarch, how the Lords are selected, how the MPs in the Commons are elected.
But you won’t find a law establishing the Parliament. Parliament has evolved over the centuries, and just is.
The answer is that you endlessly argue over it and people are divided on partisan lines as to how it should be interpreted. Judges have to decide how it is to be interpreted and the Supreme Court has issued rulings as to what the “correct” interpretation of certain passages is. In effect, the courts gloss it with binding precedent.
It’s more accurate to call the British constitution ‘uncodified’: quite a lot of it is in fact written down, just not in one place. It’s a mixture of Parliamentary law, common law judgements, precedents/customs and treaties.
The bits that are written down can be changed merely by Parliament passing a new law (no entrenchment clause like the US), while the unwritten bits can in theory be changed by simply ceasing to apply them.
For example, it is a written law that the House of Commons is elected every five years and that every adult citizen has the right to vote; but it is only a mere custom that the Prime Minister serves from the House of Commons.
Heck, under our constitution the office of Prime Minister doesn’t actually officially exist in any meaningful form.
Actually, Magna Carta has been amended over the centuries, by repealing it. Only three clauses of the Charter, as re-issued by Edward I, are still in force today, as summarised by the wikipedia article:
It looks like Clauses 9 and 29 are still considered relevant. Most of the remaining clauses were repealed (possibly as a a formality) in the 19th and 20th centuries. If we wanted to be silly about it (and it seems that they may want to be silly in New Hampshire), then all new laws in NH must pertain to trial by law or to the liberties of London.
