Magna Carta is traditionally considered a centerpiece of New Zealand’s
constitution. However, this view is problematic; Magna Carta is treated as a
constitutional document, but an analysis of Magna Carta reveals a quite different
document to that assumed by its legal place. I argue that we must disconnect our
claims of Magna Carta’s constitutionality from the text itself; moving forward
with our constitutional law, it would be preferable to codify the importance of
the “principles” of Magna Carta in our law, rather than the text itself.
It is traditional in introducing the topic of the New Zealand constitution to claim
that we rely on an unwritten constitution.1 This is not entirely true; the
Constitution Act 1986 and the Electoral Act 1993, among others, codify the
procedural aspects of our government, and our constitutional conventions clarify
the remainder, so one might think that we have as well-defined a constitution as
any other country.
However, constitutions are not purely catalogues of rules; they are also
statements of the collective values of a country. Compare the Constitution of the
United States, which enumerates fundamental values in the preamble, to the
Constitution Act, which confines itself to enumerating constitutional provisions.2
Even the New Zealand Bill of Rights Act 1990 omits such language; it lists rights,
but does not provide the reasons for their value.3 The obvious counterexample to
the argument made here, of course, is the Treaty of Waitangi, but this is
necessarily limited; the Principles of the Treaty can hardly give us much
guidance on matters of criminal justice.4 We have a lacuna in our constitutional
structure; neither recent constitutional documents nor the Treaty clarify the
common values and fundamental assumptions on which much of our legislative
and judicial system is based. At first sight, Magna Carta plays this role; it is
commonly cited in judgments touching on basic values, and even when omitted it
is usually present at one or two removes.5
So far the argument is clear enough; Magna Carta fills a constitutional role,
declaring our common values. The text itself complicates this neat picture. For a
start, it is plural; the 1225 one is legally valid, but the 1215 version is more
commonly cited. Every version focuses on provincial and seemingly irrelevant
(from a contemporary perspective) matters. The removal of fish-weirs seems
constitutionally tangential; setting standard measures of wine seems equally
beside the point.6 These clauses have been long since repealed; many did not
Personal Communication, Arie Rosen, 30 April 2014.
U.S. Constitution, Preamble; Constitution Act 1986.
3 New Zealand Bill of Rights Act 1990.
4 Tainui Maori Trust Board v Attorney-General [1989] 2 NZLR 513.
5 Zaoui v Attorney-General [2005] 1 NZLR 577; for an example of citation at a
remove, see Fitzgerald v Muldoon and Others [1976] 2 NZLR 615.
6 Magna Carta 1215 in James Holt, Magna Carta (Cambridge: Cambridge
University Press, 1969) 316-337. henceforth, I will refer purely to chapter
number, followed by the year of the version I refer to. Chapters 33 and 35, 1215.
1
2
even survive reissues of the charter from 1215-1225.7 Most of Magna Carta was
clearly temporary; purging the kinsmen of Gerard de Athée from government, to
select one of many examples, could hardly persist as a basic law.8
The clauses that persist (under the Imperial Laws Application Act 1988) are,
however, different; they declare the freedom of the church, the liberty of London,
and forbid persecution of a person “excepting by the legal judgment of his peers,
or by the law of the land”9.10 These clauses have an unusual tone; instead of
instituting a clear rule, they make aspirational demands in grandiose language.
Consider cap. 40 in the 1215 version, merged with cap. 29 in 1225. Scarcely a
line long, it gives no instruction for how it is to be accomplished, but declares,
rhetorically, “nulli vendumus, nulli negabimus…”11 – “to no one will we sell, to no
one will we deny [the right of justice]” – the dense repetition and compact
phrasing of the Latin is clearly not geared towards legal clarity, but towards
rhetorical power. This aspirational language is absent in most of our
constitutional documents, but present in equivalent constitutions
internationally.
Magna Carta’s constitutional status ignores much of the actual text. Furthermore,
the historical consensus indicates that the surviving passages have been altered
beyond recognition by the jurisprudence surrounding them; reading the rule of
law back into cap. 29, for example, is completely anachronistic.12 Equally, the
famous “we shall not proceed with force against [any free man] except by the
lawful judgment of his equals or the law of the land”13 more probably means
“according to custom” than according to written law.14 Even the “free man”15
who is protected in this limited way was a restricted category, excluding most of
the population.16
For a constitutional originalist, therefore, Magna Carta is of limited value. Even
following alternative doctrines, Magna Carta’s contemporary judicial role is more
based on a myth of what Magna Carta represents than the actual text. The
narrative of Magna Carta as the foundation of democracy draws little on the text,
and instead picks the few reinterpretable clauses with aspirational wording.
Magna Carta 1225 in James Holt, Magna Carta (Cambridge: Cambridge
University Press, 1969) 350-359.
8 Chapter 50, 1215.
9 Chapter 29, 1225.
10 Chapters 1, 13, and 29, 1225.
11 Chapter 40, 1215.
12 Frederick Powicke, ‘Per judicium parium vel per legem terrae’, 99, 101; in
Magna Carta Commemoration Essays, edited by Henry Malden (London: Royal
Historical Society, 1917).
13 Chapter 39, 1215.
14 Faith Thompson, Magna Carta, its Role in the Making of the English
Constitution, 1300-1629 (New York: Octagon Books, 1948), 89.
15 Chapter 39, 1215.
16 Thompson, Magna Carta, 92.
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This mythical conception of Magna Carta, however, has long been a keystone of
our legal system. As early as 1331, Parliament declared the phrase “lawful
judgment of his equals or according to the law of the land”17 was to be
interpreted as if the “or” was an “and”, which is normally taken as the origins of
the right to trial by jury.18 Twenty-three years later, Parliament published
statutory interpretations of cap. 29 which deviated dramatically from what is
now the historical consensus of what was meant; “free man”19 was shifted to
“man of whatever estate or condition he may be”20, which was a dramatic shift in
an age where serfdom was still common.21
Magna Carta was also a key source in many of the other documents in the British
legal tradition to which we ascribe constitutional significance. The Habeas
Corpus Act 1640 and the Petition of Right cited from it extensively, but
exclusively from the aspirational clauses, and often in erroneous ways; for
example, the former blurs the law of the land and common law together in a way
which is clearly different from the situation in 1215.22 It is in this form, then, that
Magna Carta survives into modern law. The specific elements have been swiftly
repealed, and only rhetorical declarations of collective values remain on the
books. Magna Carta itself is not, therefore, part of our constitution. Rather,
Magna Carta represents principles that can be reasonably described as
fundamental common values; the rule of law and trial by jury are symbolized by
the famous cap. 29, regardless of what the text itself says. In place of Magna
Carta, we have an agreed interpretation – an interpretation that historical
evidence has demonstrated is clearly incorrect; the narrative of Magna Carta as
the foundation for our political system fills the constitutional lacuna discussed
above, in lieu of the document itself.
This does not imply that we should discard Magna Carta from our constitutional
thinking; the narrative of Magna Carta has been integrated into many other
constitutional documents, and the aspirational clauses – however different their
original meaning, and however few in number they are – are almost unique in
our law, and fill a vital constitutional role. Nonetheless, recognizing this fact is
important if we are to move towards a more explicit constitution in future years;
Magna Carta certainly has a role in any putative written constitution, but can
only be integrated in the form of principles, rather than the text itself.
Chapter 29, 1225.
Frank Plucknett, Concise History of the Common Law, (London: Butterworth
and Co., 1948) 114-125.
19 Chapter 29, 1225.
20 The Statute of the Twenty-Eighth Year of King Edward III, 1354, 28 Edward 3,
c. 3.
21 Thompson, Magna Carta, 92.
22 Holt, Magna Carta, 10; An Act for the Regulating the Privie Councell and for
taking away the Court commonly called the Star Chamber’, 1640, 15 Charles 1.
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