8
INNER TEMPLE MAGNA CARTA Magna Carta and
The Templars 1215–1628
From a lecture given by Master Baker on 23 November 2015
T
he year 2015 witnessed one of the most remarkable
historical anniversaries ever celebrated, stretching
across continents and civilisations. The enduring
spiritual force of Magna Carta was nowhere more clearly
demonstrated than by the decision of the Chinese authorities
to ban the general public display of the 1217 charter sent
on loan from Hereford Cathedral. Its physical presence
alone was enough to alarm an authoritarian regime on the
other side of the world. The symbolic power of this ancient
document, which transcends language and culture, can
hardly be explained merely by the turbulent events of 1215.
Were it not for its reinvention in the early-modern period, it
would be known today only to a few medieval specialists.
Yet the details of the later story have become lost in a haze.
The story very nearly did end in 1215. King John
repudiated his concessions after three months, having
helpfully secured the pope’s threat of eternal anathema
should he honour them. The 1215 charter was not called
Great, it never became law, and it failed even as a temporary
peace treaty. Fortunately, John died the next year, and it was
the abridged version granted by King Henry III in 1225 which
remained in place for over six centuries as the first entry in
the statute book. But it was less important in practice than
the other great statutes of Henry III and Edward I. There are
few significant cases in the law reports, and our best guides
to legal thinking about Magna Carta between 1300 and
1550 are the lectures given in the Inns of Court. They reveal
no awareness that it had any constitutional significance.
By the 1340s, when legal communities are first
mentioned in the Temple, lectures were already being
given on the statutes, beginning with Magna Carta. Much
of the commentary was deliberately academic. A unique
performance in the Inner Temple in 1484, by Morgan Kidwelly
(about to become Attorney General to Richard III), is a good
example of the abstract approach. He read on chapter 11
(“Common pleas shall not follow our court”), and spent four
weeks discussing the two words “our court”. The result was
the first coherent account of the English legal system, from
the High Court of Parliament down to the manorial court –
extremely useful, but nothing to do with Magna Carta. Other
readers delighted in showing how several chapters were
‘void’, inconsistent or unworkable.
This page and overleaf, details from
original medieval copies of the Magna
Carta from the Inner Temple Library.
(Petyt MS 508, Petyt MS 511.9)
The treatment of the great chapter 29 was no different.
Take the prohibition on selling or delaying right or justice. Our
learned predecessors concluded – presumably by mere word
association – that ‘right’ could only mean writs of right, and
that ‘justice’ could only mean writs of justicies, a thoroughly
perverse interpretation which meant that this noble
guarantee of justice applied only to proceedings in inferior
courts. Not that it mattered much, they said, because there
were no remedies anyway. For three centuries after 1215, the
protection of liberties developed without reference to chapter
29. No one could forfeit life or property without some kind
of jury verdict, but this was not yet linked to ‘peers’. Unfree
status was eroded, not through chapter 29, which actually
protected the lord’s rights over the villein, but by legal fictions
developed in the 15th Century. Habeas corpus was developed
in the Tudor period, especially by Chief Justice Dyer (formerly
a Bencher of the Middle Temple). Not even Dyer, however,
suggested an association with Magna Carta.
The association was not unthinkable. In 1532, Serjeant
Browne (formerly a Bencher of the Middle Temple) was
committed to the Tower by Henry VIII and later released
without charge. He complained, and the judges advised the
Council that, although the King’s discretion could not be
questioned, the cause of imprisonment could be examined to
see whether it was lawful: “It appeared from chapter 29 of
Magna Carta that the King could not treat his subjects against
the law.” This was the first known case in which chapter 29
was cited judicially against the government of the day, though
it was not published until 1977. Lawyers knew about chapter
29, but it was not yet associated with practical remedies.
William Fleetwood, later a Serjeant and Recorder of
London, wrote a treatise on Magna Carta in around 1558
as a young barrister of the Middle Temple. His exposition of
chapter 29 followed the same line as the medieval readings.
He recognised as its purpose that “all should be adjudged
by the law of the land”, including women and villeins, but
said there was no remedy for loss of liberty other than the
action of false imprisonment. The charter was still, as it
were, written in ever-fading sepia ink, not radiant in gold. Sir
Benjamin Rudyerd MP (barrister of the Inner Temple) was to
speak of it as “’good old decrepit law…so long kept in, and
lain (as it were) bed-rid’”. By the time he said it, however, in