Liberty Matters

Magna Carta: An Additional Thought and a Further Example


Reading the discussion of Magna Carta’s continuing importance has been useful for me. It shows the continuing interest in the subject of course. But it has done more. At least as I evaluate the evidence of Magna Carta’s current reputation, it is hard to think of an historical event in which the divide is any greater between the general treatment and scholarly treatment of the same document. The latter is what has been held about it among professional historians, not all of them perhaps, but a very large majority. The former consists of the shared views of most modern lawyers who invoke Magna Carta as a means of establishing the legitimacy of social reforms or of celebrating the rule of law. One of the merits of the book of essays on Magna Carta edited with an introduction by Ellis Sandoz is that he confronted this question head on.[61] Reading the comments on the subject in this Liberty Fund dialogue about the subject and seeing Professor Sandoz’s earlier work mentioned motivated me to look back at his treatment of the Charter. Most of what he then said was occasioned by J.G.A. Pocock’s book on the “common law mentality” of Sir Edward Coke,[62] but his discussion remains as pertinent to the larger problem as it was then.
The problem has persisted. There is a continuing divide. The “popular view” holds that contemporary principles underpinning democratic liberties can be traced back to Magna Carta. Both the act of agreement between monarch and baronial elite and the textual outcomes are regarded as a “real living document.” For example, on 30 July 2007 UNESCO admitted it to the collection of items identified as important to the “Memory of the World” in “recognition of their outstanding universal value.” The Magna Carta, then, was not simply a local, British, circumstantial moment. It had a universal human purchase.
The “scholarly view” takes pretty much the opposite position. Magna Carta was a baronial document, occasioned by a conflict with King John and aimed at entrenching baronial privileges. The later use made of Magna Carta (by Coke and others) was mostly invention. For example, Coke used the Charter to establish the principle that the monarch could not tax his subjects without Parliamentary consent. However, say critics like Professor Pocock, the connection between the Charter and that principle was tenuous at best. Parliament did not exist in 1215. The later use of the Charter was either the product of an invented myth or the consequence of willful blindness on the part of lawyers like Coke.
What Professor Sandoz added to this debate was a more measured discussion of the concept of liberty as it was understood in the 16th century, and I tried also to add something to what he said in my first intervention in this discussion. I now think it would be useful to add one other example of the common use of legal texts in medieval times. It does not concern Magna Carta directly, but it is relevant to the ways in which texts like Magna Carta were then commonly understood before the age when legal positivism came to dominate jurisprudence.
My example comes from the use commonly made of the maxim Quod omnes tangit ab omnibus approbari debet. It means simply that what touches all should be approved by all, and it comes from a law of the Emperor Justinian (Codex It was used in the Middle Ages to justify the power of representatives of the people in early parliaments to bind the people they represented and to advance the growth of parliaments. As found in the Codex, however, it said nothing of the sort. It simply stated that when several persons had been appointed as tutores (guardians) for a minor or person under a disability, all of them had to be summoned before a court before action to terminate the joint grant of tutela could occur. Were any fair-minded person to take a cynical look at the subject, the extension of this text to justify the growth and power of parliaments would be an artificial stretch – too far-fetched to attract the attention of a serious student of the subject. However, it happened, and it happened because medieval lawyers saw in this text an underlying principle that was connected with due process of law. If it was applied in the case of guardianship, its rationale might legitimately be extended to cover a situation that had not occurred in ancient Rome. Its principle might legitimately apply more widely.
What this means for the history of medieval due process of law is that the medieval jurists found a general concept stated and applied at several places in the Roman and canon law texts.[63] They used those texts; they expanded them; and they struggled with determining what they should mean in practice. Some of their answers fit modern ideas about the subject. Some of them did not. Some we still disagree about.
It was the merit of Professor Sandoz’s discussion of 1993 that he saw and discussed this way of understanding the use later made of Magna Carta. Its texts, even some of those that seemed to relate solely to baronial privilege, were capable of treatment similar to that given Quod omnes tangit. Sir Edward Coke did so treat them, and he was not thereby doing something underhanded or wholly anachronistic. What I wanted to add to the discussion of Magna Carta was simply another example – one shared by English lawyers and Continental jurists -- of how jurists of his age regarded the texts at their disposal. Coke was doing something with the clauses of Magna Carta that did not differ greatly from what other jurists did with the maxim Quod omnes tangit. Professor Sandoz did not discuss this example, but he understood it.
[61.] The Roots of Liberty: Magna Carta, Ancient Constitution and the Anglo-American Tradition of Rule of Law, Ellis Sandoz ed. (Columbia, MO, 1993), reprinted by Liberty Fund in 2008. Online: </titles/2180>.
[62.] J.G.A. Pocock, The Ancient Constitution and the Feudal Law, 2d ed. (Cambridge 1987).
[63.] For fuller treatment see Gaines Post, “A Romano-canonical Maxim, Quod omnes tangit, in Bracton and in Early Parliaments,” Viator 4 (1946), 197-251, revised and reprinted in idem, Studies in Medieval Legal Thought: Public Law and the State, 1100-1322 (Princeton NJ 1964), 163-238; Yves Congar, “Quod omnes tangit ab omnibus tractari et approbari debet, Revue historique de droit français et étranger,” 4th ser. 36 (1958), 210-59; Bruce Brasington, “‘A Divine Precept of Fraternal Unions’: The Maxim Quod omnes tangit in Anglo-American Thought to the Ratification of the Constitution,” in Bridging the Medieval-Modern Divide: Medieval Themes in the World of the Reformation, James Muldoon ed. (Farnham 2013), 205-23.