Historical Introduction to Magna Carta and its influence
Sir Michael TUGENDHAT1
Thank you for giving me the honour of participating in this conference. My thanks go in particular to
Roger Errera himself. It is because of his friendship, that I am addressing you today.
Roger Errera wrote ‘Systematic anglomania is no longer fashionable, but on the subject of liberty
some knowledge of British institutions can be helpful’2.
Roger Errera was not an ‘anglomane’, but he was an anglophile. The common interest upon which my
friendship with Roger Errera was first formed was the rights to freedom of expression and to privacy.
About 15 years ago there was relatively little literature written in English on privacy. Some of the best
included articles written by Roger Errera. All that Roger Errera wrote in English about English law was
written in a style, and to a standard, that was equal in quality to that of the leading English speaking
lawyers. As an advocate, as the author of a text book, and subsequently as a judge, I was helped by
Roger Errera and his writing on a range of subjects.
The document that we call Magna Carta was issued in 1215 by King John 3. While Henry III was a child,
the Regent and the Papal Legate issued subsequent versions, as did later kings, until, in 1297 it
became a statute. Parts of it are still in force and are often cited in the highest courts in England, the
USA and other English speaking countires. All the texts of Magna Carta were written in Latin, but
there were contemporaneous translations into French. A copy of the oldest French translation dates
from 1215. It is in the Bibliothèque Muncipale at Rouen. According to Professor Holt, ‘It is written in
French of good standard with some, but not many, Anglo-Norman forms’4.
The barons and the King were all francophone, although some of them may also have known some
Latin and spoken English to ordinary people. A member of the family of one of the Barons, the comte
d’Aumale, is present today in the person of General d’Aumale5. English lawyers cited the Latin version
1
This is the translation of an edited version of a paper given at a Colloquium held in honour of the late Roger
Errera. It was organised by the Conseil d’Etat, la Société de législation comparée and the Franco-British
Lawyers’ Association on 30 November 2015 at the Conseil d’État, Paris, under the Chairmanship of Monsieur
Jean-Marc Sauvé, Vice-President : ‘Les libertés en France et au Royaume-Uni : Etat de droit, Rule of Law. On
the anniversary of Magna Carta 1215’. Sir Michael Tugendhat is a former judge of the High Court and Honorary
Professor of Law at the University of Leicester.
2
R Errera Les Libertés à l’abandon Seuil (1968) page 248.
3
The regent of Henry III and the papal legate sealed two versions in 1216 and another in 1217. It is the 1217
version that was called Magna Carta. This was because some of what had been in the earlier charters was
issued in two new separate charters, a large one, which we call Magna Carta, and a smaller one, which dealt
with the law of forests: D Carpenter Magna Carta (Penguin 2015) 4-8, 408.
4
MS. Y 200, fos. 81-87v. The English Historical Review, Vol 89, No. 351 (Apr., 1974) pp 346-356 at pages 348
and 350. The citations in the programme of the Colloquium appeared as follows: ‘for the health of our soul and
those of our ancestors and heirs’ - ‘pur le sauvement de nostre alme, e de toz nos ancestres, e de noz eirs'
(introductory paragraph); ‘We will not seek to procure from anyone, either by our own efforts or those of a
third party, anything by which any part of these concessions or liberties might be revoked or diminished’ - 'Et
nos ne porchacerons d’alcun, par nos ne par altrui, rien par quei alcuns de ces otreiemenz o de cestes
franchises seit rapelez o amensusiez' (Art 61); ‘To no one will we sell, to no one deny or delay right or justice’ 'A nulli ne vendrons, a nullui n’escandirons, ne ne porloignerons dreit ne justise' (Article 40).
5
B English The Lords of Holderness 1086-1260, Hull University Press (1991); J et G d’Aumale, Histoire de la
Maison d’Aumale: ci 1175-2014 (9782954353203 DL 2014 [Paris]).
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in the centuries after 1215, but the first written translation into English was not made until the
sixteenth century, three hundred years later.
These facts illustrate the principal point that I wish to make today. Magna Carta is the product of the
culture of thirteenth century Europe as a whole. It is in particular the product, not only of the AngloSaxon culture that preceded the conquest by William Duke of Normandy, but also of the francophone
culture, of which Paris was the leading centre in Northern Europe.
Magna Carta is celebrated as representing the principles of freedom and the rule of law. It also
provides for the separation of Church and State. But what the English have a right to be proud of is
not the invention of those principles. What we have to be proud of is the fact that, for centuries,
English speaking people, both in Britain, and as colonists in America, fought victoriously for those
principles. For over five centuries the English-speaking peoples had the good fortune to be more
successful than other peoples in the struggle for liberty. In the late eighteenth century they had in
large measure succeeded in establishing liberty in England and America. In the twentieth century the
subjects of the Empire employed the same principles to gain their independence.
It is not just the philosophical origins of Magna Carta that lie in France. Neither King John in June
1215, nor the regent for Henry III in November 1216, would have issued the charters unless the
French armies of Philippe Auguste had made it necessary for them to do so. In 1216 it was necessary
to gain support for the child king against the Dauphin.
Bouvines is the site of the battle in July 1214 at which Philippe Auguste had defeated John’s ally, the
Emperor Otto IV. Having lost his lands in Normandy and Aquitaine, John needed money to pay for the
war. But many Barons refused to pay. John turned to the arbitrary seizure of property which led to
him being called a tyrant. Many of the Barons rebelled. The issue of Magna Carta by King John in 1215
brought no more than a short pause in the rebellion of the Barons.
Bouvines has been described as ‘one of the most decisive battles ever fought’6. It ended the Angevin
empire, it assured the supremacy of France, and it led to Magna Carta. It made King John too weak to
resist the demands of his barons. When King John died in October 1215 London was occupied by a
French army supporting the rebellion of the barons. The rebels wanted to make the Dauphin king of
England instead of Henry III.
In the twelfth century many of the most famous teachers at the University of Paris were French,
including Abelard and Peter the Chanter who died in 1197. But teachers and students came to Paris
from all over Europe. I will refer in particular to three: two of them English and one Italian.
John of Salisbury was a pupil of Abelard. Although born in England, he received all his education in
Paris. He died in France as Bishop of Chartres in 1180. He is the author of Policraticus7, one of the
earliest medieval works of what we call political science. He was also a friend and advisor of Thomas
Beckett in Beckett’s dispute with King John’s father, Henry II, over the separation of the Church and
state in England.
John of Salisbury was a part of an anti-monarchical school of thought. He distinguished a prince from
a tyrant. A prince fights for the laws and liberty of the people. A tyrant oppresses the people by
violent domination. John taught that resistance to oppression was justified, and that it may even be
6
7
Carpenter (n3) 287.
C Nederman ed John of Salisbury: Policraticus Cambridge (1990).
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just to kill a tyrant. He also wrote that ‘it is madness as well as iniquity to sell justice’8. Those who
rebelled against King John claimed that he was a tyrant.
Two other students in Paris at the same time were the Englishman Stephen Langton, the future
Archbishop of Canterbury, and the Italian, Lotario dei Conti di Segni, who became Pope Innocent III.
Innocent III appointed his friend Langton Archbishop of Canterbury. King John at first opposed the
appointment of Langton. This was in part because Langton had little knowledge of England: he had
passed all his adult life in Paris.
Langton later became the first of the advisers whose names King John includes in the 1215 version of
Magna Carta. Magna Carta reflects the anti-monarchical views that Langton had been teaching in
Paris. Scholars dispute whether or not Langton contributed directly to the drafting of Magna Carta9.
Some say that he cannot have helped in the drafting: if a professor from Paris had helped, the charter
would have been much clearer than it is. The 1215 version of Magna Carta also contained a serious
defect. Article 61 established procedure whereby the Barons could enforce the King’s promises
before a tribunal. This was one of its most positive features. But the defect was that the tribunal
consisted of 25 Barons. So they were to be judges in their own cause. The 1216 version omits that
clause, as do the other versions issued after the Pope had annulled the 1215 charter. The principle
quia aliquis non debet esse judex in propria causa, imo iniquum est aliquem sui rei esse judicem was
recognised.
Magna Carta is not a declaration of principles, in the style of the Declaration of the Rights of Man and
the Citizen of 1789. But in the thirteenth century, as today, lawyers and philosophers, could see the
principle which a law embodies, whether or not the law expresses the principle.
In the case of Magna Carta one principle is that the king is not the source of the law. Rather, the king
is subject to the law. Article 39 protects liberty and property: ‘No free man shall be seized or
imprisoned, or stripped of his rights or possessions, … except by the lawful judgment of his equals or
by the law of the land’.
John of Salisbury, Langton and other members of the faculty in Paris used texts from the Bible to
support their teaching that the king did not make the law, but was himself bound by the law. Both he
and Langton had cited the same passage from Deuteronomy Ch 1710:
‘When he takes the throne of his kingdom, he is to write for himself on a scroll a copy of this
law, taken from that of the Levitical priests. It is to be with him, and he is to read it all the
days of his life so that he may learn to revere the Lord his God and follow carefully all the
words of this law and these decrees’.
The Biblical principle that even the king is subject to the law is the opposite of the principle of
Imperial Roman law: Quod principi placuerit, legis habet vigorem – the will of the prince has the force
of law.
Although the Charter accepted by King John had been annulled by the Pope within a few months, the
re-issue of Magna Carta by Henry III set a precedent. For the rest of the century, when a king wanted
support from the Barons, or taxes to pay for his government, it became accepted that he had to reissue Magna Carta. Later it became accepted that, before his subjects would consent to be taxed, the
8
Policraticus III.15, V.11, VIII.17 (n7) 25, 93 and 190-1 93.
Carpenter (n3) 259; J Baldwin Due Process in Magna Carta in R Griffiths-Jones and M Hill (eds) Magna Carta,
Religion and the Rule of Law Cambridge (2015) 31.
10
Deut 17:18-19: Policraticus IV.4, IV.6.
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king had to consent to laws to address the grievances of his subjects. This remains one of the
fundamental principles of the British Constitution.
The ideas which gave rise to Magna Carta, and which John of Salisbury learnt and taught in Paris,
appeared repeatedly in the centuries that followed. In the fifteenth century they appear in the
writings of Sir John Fortescue, formerly Chief Justice. He cited the same passage from Deuteronomy,
and wrote: ‘The King … by his own laws … cannot despoil any of his subjects of their goods without
due satisfaction to them. Nor can the king there, by himself or by his ministers, impose tallages,
subsidies, or any other burdens whatever on his subjects, nor change their laws, nor make new ones,
without the concession or assent of his whole realm expressed in his parliament…’ 11
In the sixteenth and seventeenth centuries these ideas appear in the writings of Thomas More12,
Edward Coke and others. According to Coke, ‘… as often has hath been said, that all statutes made
against Magna Charta … should be voyd…’ 13. At his trial in 1535, More argued that the law making
Henry VIII head of the Anglican Church was contrary to Art 1 of Magna Carta (‘the English Church shall
be free’) 14. In the seventeenth century these ideas appeared in the writings of Puritans such as John
Milton. These ideas led to the trial and execution of Charles I in 1649, and to the deposition of James
II in 1688. These were also developed by French writers in the sixteenth century, and contributed to
the events of 1789 and the execution of the King in 179315.
One of the texts on English law which encouraged the ‘anglomanes’ in the eighteenth century was
written by Jean-Louis de Lolme. According to de Lolme, at the English revolution of 1688 ‘By the
expulsion of a King who violated his oath, the doctrine of resistance, the ultimate resource of an
oppressed people, was confirmed beyond doubt’16. Liberty, property, security and resistance to
oppression are principles underlying Magna Carta. In 1789 they were set out in the Declaration of the
Rights of Man:
Art 2 … these rights are liberty, property, security, and resistance of oppression.
Art 7 No man should be accused, arrested, or held in confinement, except in cases
determined by the law
Art 14 Every citizen has a right, either by himself or his representative, to a free voice in
determining the necessity of public contributions…
Art 17 The right to property being inviolable …
Magna Carta and the Declaration of the Rights of Man are members of the same family17.
11
S Lockwood ed, Fortescue On the Laws [de Laudibs Legum Angliae] Cambridge (1997) Ch I et Ch XXXVI :
Tyrannicida : Complete Works of St Thomas More 3, 1 78-93 (Yale, 1974); More Utopia Cambridge University
Press (2002).
13
2 Institutes page 43 and 45.
14
RH Helmholz Natural Law in the Trial of Thomas More in HA Kelly, L Karlin and G Wegemer Thomas More's
Trial by Jury Boydell & Brewer (2011) 66; (1535) 1 State Trials 385 393.
15
B Kriegel La République et le Prince moderne PUF (2011).
16
J-L de Lolme The Constitution of England, Or An Account of the English Government London (1775) 67 ; J-L de
Lolme Constitution de l’Angleterre Amsterdam (1778) 48.
17
See further M Tugendhat Les Droits et l’Oubli – 1789 (2014) 25 KLJ 394-425.
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