Chris Jones Mana & Magna Carta: The New Zealand Experience of a Medieval Legacy 1 History of the Paper: First Presentation of Paper – Public Lecture; Bicultural Segment Presented on
10 July 2015 as part of the University of Auckland Magna Carta Lecture Series (10-15 mins);
Elements then incorporated into the CHF Gardner Lecture 2015 later published with the CHF
(50mins). This version: combines elements of both with material from the Mana of the Magna Carta
exhibition (December 2015) for Medieval Legacies of Human Rights in Australasia, Europe, and
Muslim Societies, University of Sydney Workshop (20 June 2016) [35mins]
Introduction:
Mid-June 2015, as most people will be aware, marked the 800th anniversary of the
sealing of the charter known as ‘Magna Carta’ by a somewhat reluctant King John at
Runnymede.
From a medievalist’s perspective, of course, such anniversaries have a practical
value:
Beyond the role they play in drawing public attention (and funding) to the field,
Magna Carta’s celebrations produced much new analysis of the Charter in
its medieval context, and even resulted in the discovery of a previously
unknown manuscript.
Aotearoa New Zealand shared in the celebratory atmosphere: it formed its own
Magna Carta 800 Committee to coordinate a year–long series of events.
As an aside: One of its projects was to locate copies of the Charter in New
Zealand. As the coordinator of that particular strand of the committee’s work, I was
happy to discover the oldest copy actually belongs to my own institution, the
University of Canterbury.

Unlike Australia, New Zealand does not own a medieval version of the
Charter, but Canterbury’s printed edition turns out to have been the personal
possession of Richard Sampson.

Sampson is not today a household name but he is significant in that he was
Henry VIII’s proctor in the divorce proceedings against Anne Boleyn.

Given that role, Sampson is not, perhaps, a glowing advertisement for the
connection between human rights and the Charter.
Nevertheless, beyond the temporary media frenzy generated by new discoveries,
the focus of the Magna Carta 800 Committee for New Zealand lay in answering a
broader question for a New Zealand public many of whom were, perhaps, slightly
Chris Jones Mana & Magna Carta: The New Zealand Experience of a Medieval Legacy 2 bemused by the attention being paid to a document written 800 years ago and half a
world away:
‘Why is Magna Carta so important?’
As a medievalist, that is a question to which I could devote not one but many hours.
My intention in this paper, however, is to explore some potential answers to a much
more specific question:
‘Why does Magna Carta remain important today in New Zealand?’
Today we possess a sophisticated language in which to discuss human rights.
What possible relevance can there be for Aotearoa New Zealand in an 801 year-old
English document whose authors thought primarily in terms of protecting property
from a rapacious ruler and, as they themselves put it, were concerned
exclusively with the rights of ‘free men’?
I would like to offer two possible answers:
1). The first highlights Magna Carta as a significant shared legacy for
countries that base their legal systems on the English common law.
And here I do not plan to offer any novelty, but merely to demonstrate the way in
which Magna Carta has come to be perceived in modern New Zealand. That
perception reflects common assumptions across common law countries, from
the United Kingdom to the United States.
And it is an answer that, in many respects, can be distilled into a sound-bite, and
often was in 2015: ‘Magna Carta is symbolic of the rule of law’
2). My second answer to the question of why Magna Carta remains important
in New Zealand today is, I hope, more innovative.
I intend to suggest that Magna Carta demonstrates the potential a medieval legacy
has to contribute to resolving a very modern problem of rights and identity, one
that cuts to the heart of Aotearoa New Zealand society today.
Chris Jones Mana & Magna Carta: The New Zealand Experience of a Medieval Legacy 3 This second answer is at the core of a chapter I am presently writing for an
essay to be published next year by Palgrave Macmillan. The collection,
Magna Carta Aotearoa: History, Politics and Law, will be edited by Steven
Winter (University of Auckland) and myself.
PART 1: The Rule of Law [SLIDE – Contemporary Views – B6]
I’d like to begin, though, with the sound-bite, because its importance for human
rights in countries that operate in an English common law tradition should not be
trivialised.
New Zealand supplies an excellent case study for the continued mana (a Te Reo
Māori term meaning, loosely, ‘spiritual authority’) of the Magna Carta in the
common law world.
This mana was, perhaps, at its clearest in speeches made in the Wellington House
of Representatives marking the Charter’s anniversary. Here politicians of all stripes
spoke eloquently of its significance:
On one side of the House, the Green Party MP, Eugenie Sage noted:
“Magna Carta has been an important foundation stone of our democracy,
because it essentially did three things: it established that no one was above
the law, not even the king; it established that there was a right to a free trial;
and it established that no one should be imprisoned arbitrarily by the State”
At the opposite end of the political spectrum, the leader of New Zealand First,
Winston Peters stated:
“Although it is a document signed in medieval England between the barons
and the king, it is no exaggeration to suggest that Magna Carta forms the
foundation stone of the freedoms and liberties we now enjoy in New Zealand”
The Charter’s perceived importance was summed up by Chief Justice, Dame
Sian Elias, at one of a series of public lectures organised by the NZ Magna Carta
800 Committee:
“Magna Carta [, she said,] lays the foundations for the rule of law and
parliamentary sovereignty, the twin elements of the New Zealand constitution
Chris Jones Mana & Magna Carta: The New Zealand Experience of a Medieval Legacy 4 today. In the necessary discussions we will continue to have on constitutional
directions, the ideas of Magna Carta will continue to be drawn on, as they
have been for the past 800 years.”
The importance of that first concept, the rule of law, was picked up again and again
by speakers in the same lecture series from across New Zealand’s political divide: it
appears in the speech of Andrew Little, leader of the NZ Labour Party; Judith
Collins, senior member of the National Party and former Justice Minister; and
Johanna McDavitt, part of a group of young lawyers interested in significant reform
of criminal justice policy.
All of these statements underline New Zealand politicians’ commitment to celebrating
that link between Magna Carta and the ‘rule of law’. The concept was equally
celebrated in 2015 in the UK, the USA, Canada and, indeed, Australia.
A modern understanding of the concept of the ‘rule of law’ is summed up neatly in
the comments of the Māori lawyer, Isaac Hikaka:
“The rule of law is most conveniently summarized as a principle, as the
requirement that power must be exercised in accordance with law rather than
on a whim.”
The phrase ‘rule of law’ does not come from Magna Carta in any of its many
variations; nor does Isaac’s definition.
It is, in essence, an echo of the distillation of Magna Carta established in the
early 17th century by another lawyer, Sir Edward Coke.
[SLIDE – Principles B2]
And in many respects, I think it was Coke’s Early Modern concept that was the real
focus of the celebrations in New Zealand last year, rather than Magna Carta itself.
How does Coke’s concept relate to the actual medieval document?
I think the relationship might best be described as a ‘loose’ one.
By Coke’s day Magna Carta had already developed a slightly ‘talismanic’ quality:
It was certainly regarded as a foundation stone of the common law.
Chris Jones Mana & Magna Carta: The New Zealand Experience of a Medieval Legacy 5 That view had been cemented by sixteenth-century publishers who had
adopted the habit of printing it as the first English law in collections of the
statutes (this is where we find it in New Zealand’s oldest copy).
By Coke’s day, however, it had been nearly two centuries since English kings had
issued regular confirmations of the Charter. But for Coke it offered an
opportunity: it was a way in which he could argue for a check on the arbitrary
actions of the Stuart kings.
Coke distilled Magna Carta down to two fundamental ideas:
1). The Crown was bound by its own laws.
2). The Crown has an obligation not to deny or delay justice.
And Coke made it clear, in stark contrast to the Stuart view of the divine right of
kings, that Magna Carta stood above royal whims:
“Magna Charta is such a fellow, that he will have no ‘Sovereign’”, as Coke
pithily put it in a House of Commons debate in 1628.
Coke’s fundamental concepts were symbolised by the 29th Clause:
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.
In New Zealand, this is the English version of the one clause in a very long
document that remains preserved in law (via the New Zealand Imperial Laws
Application Act 1988).
All of which is to say, that in 2015 New Zealand congratulated itself, like much of the
former British world, on preserving a symbol whose significance is based on a
17th century interpretation.

Magna Carta is a check on the actions of Thomas Hobbes’s Leviathan.

It is a symbol that defines the responsibilities of the state to those it rules.
Chris Jones Mana & Magna Carta: The New Zealand Experience of a Medieval Legacy 6 In reality of course the state can still do pretty much whatever it wants; Magna Carta
can be interpreted to say the state just needs to pass a law first to say that what it
wants to do is legal before it actually does it. And then it can.
However, Magna Carta’s significance for human rights in common law countries is
that, on a theoretical level at least, it still represents a check on the state’s ability to
take arbitrary action.
You might well ask what all this has to do with medieval legacies of human
rights.
And, on one level, one could argue not that much! In ‘rule of law’ we are really
talking about an Early Modern concept.
We might, though, stretch a point and note that Coke was drawing on a longer
history of Magna Carta as a guarantor of rights, albeit rights that were generally
speaking rather more specific than the ‘rule of law’.
These rights – most of which are concerned with the protection of personal
property and limitations on feudal exactions – explain the frequent re-issues of
the Charter in its first two centuries.
So we might say that Coke’s distillation builds on a long legacy that converted a
defence of specific individual rights into a broader definition of the proper relationship
between the ruled and the ruler.
Part II: Beyond the Rule of Law?
But is there more that might be said? This brings me to the second topic I would
like to discuss today: the potential of Magna Carta and its legacy to play a part in
resolving a complex modern problem connected with rights and identity in
modern day Aotearoa New Zealand.
Before I begin to explore this topic, though, I feel I should highlight that in March
2015 the Right Hon Lord Sumption, Justice of the Supreme Court of the United
Kingdom, claimed the following:
Chris Jones Mana & Magna Carta: The New Zealand Experience of a Medieval Legacy 7 “It is impossible to say anything new about Magna Carta, unless you say
something mad. In fact, even if you say something mad, the likelihood is that it
will have been said before, probably quite recently.”
And so I feel it is only fair to warn you that I am going to attempt the impossible; and
what I say may be quite mad. I beg your indulgence. With all due respect to the
noble and learned lord, though, I don’t believe anyone has said what I am going to
say before.
And I might go slightly further and venture to suggest that the reason Lord Sumption
draws the conclusions he does is because he is a lawyer, not an historian.
Lawyers, by the nature of their craft, sometimes have difficulty thinking outside the
constraints of the legal system.

Commentators on Roman law in the early 14th century, for example, had
tremendous difficulty dealing with the independent status of rulers such as the
French and English kings.

Most concluded it was, at best, a de facto independence rather than de iure
because the situation of an independent ruler was inconceivable within the
framework of the Roman legal code, the Corpus iuris civilis.
The problem I want to discuss today is similar: it is one that has been created by the
‘closed loop’ of English law.
I would like to suggest that Magna Carta may offer us a way out of that loop
and in so doing assist in the process of restoring rights and dignity that have
been denied to an indigenous people for some 170+ years.
The essence of the problem that I would like to address is connected with:

The nature of sovereignty as it is understood in common law countries

And New Zealand’s specific constitutional arrangements
New Zealand has, like Australia – indeed like any British successor state with a
common law legal system – a very simple arrangement: legal sovereignty rests in
the Crown-in-Parliament. And it is indivisible.
Chris Jones Mana & Magna Carta: The New Zealand Experience of a Medieval Legacy 8 NZ’s political arrangements date to 1840. They rest on the back of the Treaty of
Waitangi, an agreement between the Crown and various Māori tribal leaders.
In essence, the Treaty was conceived of by the British as the ceding of
sovereignty by the chiefs to the English Crown in return for guarantees
and protection.
Such was its significance that the missionary who translated it, Henry
Williams (d. 1867), coined the description of it that has stuck: the Treaty
became the ‘Māori Magna Carta’, with all the associated implications of a
document that guaranteed basic rights.
Under the terms of the 1840 Treaty, all of New Zealand’s inhabitants became
subjects – later citizens – of the Crown.
It is this understanding of the Treaty that led Judge Carrie Wainright to note in
October 2015 in her Prelim accompanying The Whanganui Land Report – a product
of the Waitangi Tribunal, a body established by the Crown in 1975 to investigate
historic injustices based on breaches of the Treaty – that in this case, the “… the
Crown also fell short of the standards of justice and fair dealing that flowed from the
Magna Carta”.
Judge Wainright’s point was based on the assumption that with the establishment of
British sovereignty, Māori had become entitled to all the benefits and
protections of the English common law, including respect for the ‘rule of law’
principle based on Coke’s assessment of Magna Carta.
And, on the surface, this all makes perfect sense: ‘sovereignty’ is precisely the
word used in the English text of the Treaty of Waitangi.
So where is the problem?
Its essence lies in the fact that the Treaty is a bilingual document.

The engrossments – one version in English, one version in Te Reo Māori –
have equal legal standing.

BUT the Te Reo version does not talk about ‘sovereignty’.
Chris Jones Mana & Magna Carta: The New Zealand Experience of a Medieval Legacy 
9 Instead it suggests the chiefs conceded kāwanatanga (which might loosely
be understood as ‘governorship’) while retaining rangatiratanga (again,
loosely, ‘the customary authority of the chiefs over their own people’).

The key point is that it is unlikely that the chiefs believed they were signing
away anything resembling the concept of sovereignty as the British
understood it in 1840.
And this discrepancy has created a constitutional problem that New Zealand has
faced for 170+ years.
On the one side, stands Hobbes’ Leviathan, the modern state:

The Crown recognises – at least it has done since the second half of the 20th
century – that Māori were poorly treated and that their rights to property were
not respected.

To remedy this it has set up Crown appointed bodies such as the Waitangi
Tribunal to remedy the complaints of what it regards as a group of NZ
citizens.
The Crown also recognises that Māori should, under the terms of the Treaty, be
treated as citizens with a unique form of ‘political’ sovereignty.

It has responded, since the 19th century, by allocating reserved seats in the
House of Representatives to Māori and by granting tribal representatives
particular privileges to oversee and review the work of local authorities and
legislation.
But Māori ‘political’ sovereignty is understood in the sense that the 19th century jurist
A. V. Dicey understood it: ‘political’ sovereignty is about the relationship between the
Crown and its subjects – it encapsulates the sense that there is a consensual
relationship; but in a monarchy ‘political’ sovereignty of this kind has no legal force.
‘Political’ sovereignty is not the same as ‘legal’ sovereignty, which in NZ remains
wholly invested in the Crown.
On the other side of the argument is the view that the Crown has been acting
illegally under the terms of its own Treaty since 1840: it never possessed legal
sovereignty because the Māori chiefs who signed up to the Treaty never ceded it.
Chris Jones Mana & Magna Carta: The New Zealand Experience of a Medieval Legacy 10 This remains the source of a very real problem in modern New Zealand. To give
the most recent example:

Amongst protestors at the recently concluded Trans Pacific Partnership are
those who argue that the New Zealand government has no authority to sign
away the rights of Māori in this or any other international agreement. To do
so, is they suggest, a breach of the Treaty.

The logic of this argument is, in essence, that the NZ government cannot
conduct foreign policy.
The NZ government’s view is simple: it can act because it possesses full legal
sovereignty. The de facto situation, of course, favours the government: New
Zealand is, to all intents and purposes, a state just like the UK and the Australia.
But this does not alter the fact that a significant proportion of the population believe
the ‘settler government’ continues to usurp what is now frequently labelled, albeit
inaccurately, ‘Māori sovereignty’.
More widely, there remains a sense that however much land and resources the
Waitangi Tribunal returns to Māori it remains a Crown body that dictates terms, a
strange aberration when for Māori the Treaty had been conceived as a partnership.
It is here, that I would like to suggest that Magna Carta may provide a useful model
in reconsidering the relationship between the Crown and Māori.
But not Magna Carta as it exists on the statute books today.
New Zealand’s 1988 act lifts its single-surviving clause directly from King Edward
I’s 1297 confirmation of the Charter. The reason for that is that the 1297 version is
the first confirmation to find its way on to the English Statute Rolls. Or, in other
words, it is the first version, to be regarded as what we would think of today as a
‘law’.
Edward’s Charter was issued nearly a century after the original concessions. It was
itself a re-issue of a text first produced by Edward’s father in 1225. The most striking
feature of the 1225/97 version of the Charter, for our purposes, is that it is a lot
shorter than the original Magna Carta sealed by King John in 1215.
Chris Jones Mana & Magna Carta: The New Zealand Experience of a Medieval Legacy 
11 The famous Clause 29, for example, was originally Clauses 39 and 40.
That gives some sense of quite how much did not make the ‘final cut’.

This is not a question of a few variations in the wording; whole sections
disappeared.
This brings me to three clauses in particular, 56 to 58 in the original 1215
document. Collectively, we might label these the ‘Welsh clauses’.
They come near the end of a series of chapters in which the King addresses
grievances and sets out to put right injustices he had committed. And, from a
Welsh perspective, King John certainly had a lot to put right.
To understand the Welsh clauses we need to understand something of the Welsh
situation in 1215:
In 1066, a hundred and fifty years earlier, the Normans had conquered England; they
then attempted to conquer Wales. The first conquest went rather well; the second
stalled. Partly it was a question of terrain; partly it was a result of the rather
frustrating fact that while the English had a single king and a kingdom that could be
conquered, the Welsh failed to have either. They were ruled, as the great historian of
John’s reign W. L. Warren put it in the 1960s, by ‘quarrelsome Welsh chieftains’.
By 1215: there was a clear Anglo-Norman presence in South East Wales and a
highly militarised area known as the March along the border with England. But
central and north Wales remained in the hands of its native princes. In 1215, chief
amongst the princes was Llywelyn ap Iorworth – known as Llywelyn the Great
(1173-1240) – Prince of Powys.

John’s relationship with Llywelyn was not always a bad one. But in the years
that immediately preceded Magna Carta, John and Llywelyn were very much
at odds. In fact by 1211/12, their dispute had become open warfare and
John even attempted to stage an invasion of Wales.

The war led Llywelyn to back the barons who put Magna Carta in front of
John.
It was Llywelyn’s support that explains the insertion of the Welsh clauses amongst
the original Charter’s grievances. This is very obvious in clause 58:
Chris Jones Mana & Magna Carta: The New Zealand Experience of a Medieval Legacy 
12 Here, John agreed, without condition and immediately, to return Llywelyn’s
son, who had been taken as a hostage.

And not just the Prince’s son but all Welsh hostages taken by the King and
even the documents the Welsh had been forced to seal.
More interesting though are Clauses 56 and 57. The first reads as follows:
If we have disseised or dispossessed Welshmen of lands, or liberties or other things, without
lawful judgement of their peers, in England or in Wales, those things are to be immediately
restored to them. And if a dispute arises about this, then it is to be dealt with in the March by
judgement of their peers, concerning tenements in England according to the law of England
(secundum legem anglie), concerning tenements of Wales, according to the law of Wales
(secundum legem wallie), concerning tenements of the March, according to the law of the
March (secundum legem marchie). Welshmen shall do the same for us and our men.
In the following chapter John agreed to look at all the lands his father and brother
had taken from the Welsh.
The most remarkable feature of these chapters is what they have to say about
law and the way in which they say it. They place Magna Carta in a rather different
light to the one we are accustomed to see it in.
In its 1215 form Magna Carta is not just the foundation of English common
law; it is a statement that the English King recognises another people’s
laws and a recognition of how he should relate to their laws.
In fact the Welsh clauses note there are three laws to take account of:
English law, Welsh law and the law of the March.
Clause 56 recognises that if a dispute arose it was to be decided on neutral
ground, the March.
The ultimate arbiter of any dispute over land was not the English king; it
was to be the Welsh themselves.
Under Clause 56 of Magna Carta, it was the victims of the injustice who were to
decide the proper settlement of land, not the perpetrator of the injustice.
Perhaps most notable of all, John appears to recognise that in disputes over Welsh
land not only ‘his men’ but even the King himself was to come to the Welsh for
Chris Jones Mana & Magna Carta: The New Zealand Experience of a Medieval Legacy 13 judgement according to the appropriate law: ‘Welshmen shall do the same for us and
our men.’
And all of this is expressed, not in King John’s native language, Anglo-Norman
French, but in a common language whose nuances were understood by all the
parties involved – Latin.
I think it would be difficult to find a more striking contrast with the Treaty of Waitangi
and the processes on which contemporary attempts at restoration and reparations
related to it are founded.
Conclusions?
Of course, the 1215 Magna Carta carries no legal weight today: it was annulled
by Pope Innocent III a little over a month after it was granted.
The Welsh clauses were removed from subsequent re-issues of Magna Carta very
quickly. On a legal level, they mean nothing at all today. Indeed, by the time Edward
I re-issued ‘our’ Magna Carta in 1297 they would have seemed absurd: Edward was
the king responsible for the final conquest of the Welsh principality.
The reason I have discussed them, however, is that they offer a model rooted in the
common law’s most revered document in which the Crown effectively recognises a
model in which multiple legal systems co-exist and shows us how they might
interact. Or to put it another way, the original text of Magna Carta contains a model
for legal pluralism.
The Welsh clauses were grounded in assumptions about the existence of an
equality of authority – if not power – between the Welsh lords and the English
king. They were not conceived in terms of modern concepts of legal sovereignty and
the consequent assumptions that a state should possess a unitary legal framework
or, at the very least, a hierarchy of laws.
And in this sense Magna Carta might be a medieval legacy that offers new ways of
thinking about a modern problem. It is a model that both the Crown and Māori might
find acceptable, the one because it is based on principles ultimately derived from the
common law, the other because it recognises the spirit of the Treaty of Waitangi.
Chris Jones Mana & Magna Carta: The New Zealand Experience of a Medieval Legacy 14 A final thought: [SLIDE – Contemporary Views B6]
In December 2015 I put together an exhibition about Magna Carta in NZ. Amongst
the varied quotes we selected to demonstrate the significance of the Charter one of
the most eloquent seemed to me that of the Māori Party Co-Leader, Marama Fox
from her contribution to the anniversary speeches in Parliament:
“Eight hundred years have passed since the first steps towards a commitment
to basic human rights, first provided for and recognised by the Crown.
However, 800 years later we know there are still improvements to be made in
ensuring that the word and rule of law is applied equally and indiscriminately
and is treated with greatness and respect.”
At the time, I wrote to Marama Fox’s office to request a brief biography to
accompany her comments concerning the Charter. She requested that we include in
that biography the following phrase:
“She strongly advocates recognizing the principles in the spirit of the Magna
Carta, and will continue to push for this recognition.”
For a New Zealander, that’s a very striking choice of words for a Māori political
leader to select:

Those words link Magna Carta, unavoidably, to another document where the
words ‘principles’ and ‘spirit’ are frequently employed by Māori: The Treaty of
Waitangi.
So perhaps by returning to Magna Carta’s roots, and re-assessing its original
principles and spirit – rather than simply celebrating the Early Modern concept of the
‘rule of law’, important though it undoubtedly is – we may find new ways to recognise
the rights of an indigenous people and resolve modern problems.