This speech was presented at the conference of the New Zealand Historical Association at the 800th anniversary of the granting of Magna Carta.
We look upon Magna Carta as a Good Thing ~ capitalised, as Sellars and Yeatman[1] would have it ~ and no-one would dispute for a second that the Great Charter is a foundation stone ~ an early milestone ~ in any case, a very large stone! ~ marking an important place in the evolution of the British Constitution into the glory and envy of the world.
In any discussion of it we still hear echoes of that Whig interpretation of history which we may have officially abandoned.
But the first rule of ecology ~ and indeed the first rule of life ~ is that everything is connected ~ or, to put it another way, that one can never do only one thing ~ or, to put it another way, that everything comes at a cost. There really is no such thing as a free lunch.
‘Take what you like, says God’ ~ so runs the Spanish proverb ~ ‘Take what you like ~ only pay for it.’
The price of liberty, after all, is eternal vigilance. Magna Carta itself required a rebellion and civil war before it could come into existence. And our immemorial liberties, which we so easily take for granted, we owe not just to Magna Carta but to the events of many centuries, most notably, of course, the tumultuous seventeenth century, which saw an appalling civil war, the execution of one king, the restoration of one of his sons and then the overthrow of another.
I ask you now to think not about the events of the early thirteenth century, when Magna Carta was made, but about how Magna Carta has been used in later times ~ in particular, in the seventeenth century and in New Zealand in the late twentieth and early twenty-first centuries.
There is no doubt but that Magna Carta, Good Thing though it may be ~ or, to be more accurate, the understanding, the myth of Magna Carta ~ was an important element in promoting and sustaining the discord of the seventeenth century that led to the Civil War ~ and war, we can surely agree, is generally a Bad Thing.
Magna Carta is a good thing, but not all the fruits of good things are themselves good things. They may be an inevitable part of the cost of the good thing ~ but nevertheless, we should realise that they are part of the cost.
Lawyers are not historians. Lawyers, as lawyers, are interested in history only as a source of useful precedents ~ only as a quarry from which they can obtain material useful for their legal constructions ~ an arsenal of useful weapons.
Lawyers, as is surely well-known, are not necessarily interested in settling arguments. The sensitive modern lawyer seeking a win-win solution may be, but on the whole lawyers seek victory for their side and the annihilation of the other.
‘Sir,’ runs the legendary letter from one lawyer to another, ‘I regret to inform you that our respective clients are in danger of reaching agreement.’
But most of the time, of course, the clients are no more interested in win-win solutions than are the lawyers they employ.
I am going to speak very shortly about the Treaty of Waitangi ~ but let me say at this point that it seems to me to be a great mistake ~ at least from the point of view of non-Maori New Zealanders, the great majority of this country’s citizens ~ to make the sorting out of Maori issues a legal issue.
In what other area of our national life would we say to ourselves ~ ‘Good heavens, here is this enormously complex social ~ economic ~ cultural ~ racial ~ historical ~ tangle ~ what are we to do to solve it? I know ~ let’s get the lawyers in!’?
Our general understanding of the seventeenth century is interesting in that that is one of the rare periods in our history ~ perhaps the only one ~ where there is a definite tendency to sanctify the common lawyers as valiant defenders of liberty. Lawyers generally get a bad press, but the perception of the lawyers of this period is often to see them as doughty little defenders of the common good.
That would be a mistake. They may have established precious liberties, but that does not mean they were saints. Indeed, it has often been observed that cases, and battles, about civil liberties often involve establishing those liberties on behalf of unpleasant people; and a good few of the Parliamentarians would fall into that category.
Sir Edward Coke’s career epitomises Bacon’s observation that ‘[a]ll ascent to great place is by means of a winding stair’. He began his career as a vehement defender of the royal prerogative ~ his prosecution of Sir Walter Raleigh is one of the most notorious and disgraceful episodes of our legal history ~ and his widow said of him that ‘We shall never see his like again ~ thanks be to God’.
Sir David Lindsay Keir writes[2] that ‘the peace and plenty of the dawning seventeenth century bred men of arrogant and self-confident temper, impatient of control and distrustful of authority. Political opposition to Stuart rule was largely based on self-interested motives.’ Charles I was hapless in many ways, and undoubtedly not to be trusted, but his opponents ~ wealthy men withholding a few shillings of ship money on grounds of the highest principle ~ do sometimes just seem tight-fisted and odious.
It might be anachronistic ~ and history does not repeat, although it is said to rhyme ~ but one is tempted to sense in the Parliamentary party a hint of our own time’s Business Round Table. The Parliamentarians may have been fighting for liberties which we have long enjoyed, although perhaps are too inclined to take for granted ~ but King and Cavaliers were also, in their own way, fighting for freedom ~ the freedom that arises out of an established social order, where everyone has a place, even if only a humble one. They may, to use Sir Henry Maine’s terms[3], have been defending a society based on status rather than contract ~ but contractual freedom and enterprise include the freedom to fall as well as to rise, and do not necessarily involve much sympathy for the fallen. There is something to be said for security. As has been said of ruts ~ at least you can’t fall out of them.[4]
The Parliamentary fighters for liberty ~ to quote Keir again ~ ‘showed repugnance towards the development of a centralised government which might challenge their own predominance. They were particularly opposed to the policy by which the Crown sought to maintain social justice by such measures as the prohibition of enclosures, the restriction of commercial competition and the enforcement of the Elizabethan code of economic regulation and poor relief.’
Above all, of course, they were reluctant to assume the additional financial burdens of the rising cost of government in an age in which the level of prices was rising while the yields of fixed revenues ~ and of Parliamentary grants ~ were both falling. It was no longer possible for a king to ‘live off his own’.
Nor were common lawyers animated by constitutional scruples alone. There were professional rivalries and ambitions, and then there was religious zeal….
There were contradictions in the mediaeval constitution. There were undoubted precedents to which supporters of the royal prerogative could appeal, and also undoubted statements supporting the authority of parliaments and the common law. And at the same time, to quote Keir yet again, ‘there was much bad law and worse history in the appeals which each side made to the constitutional practice of the past. Each side had a case, and the Crown at most points a better case. The case of each was imperfect….’
There was inevitably, then, a crystallisation of opposing viewpoints, and this was ‘a thoroughly vicious and destructive process’. But it was a process which lawyers, standing on legal principles, tend to adopt. Both the Crown and the opposition, driven into an unyielding defence of imperfectly defensible positions, soon put themselves hopelessly in the wrong. Agreement that Parliament alone could grant supply did not mean that the king should be deprived of control over the executive ~ yet that was what Parliament sought.
The point to make here is that Magna Carta featured in this process. We may debate exactly what Coke meant when he said that ‘Magna Carta is such a fellow that he will have no sovereign’ ~ but I make the point that, whatever exactly he might have meant, there is no doubt that Magna Carta was there in his argument. The myth of Magna Carta was a significant element of a destructive process. Magna Carta was one of the items of ammunition ~ one of the necessary antecedents ~ one of the causes, in a certain sense ~ of the English Civil War.
You may reply that well, we had to have a civil war in order to sort out the contradictions of the mediaeval constitution and decide whether England was to be a Parliamentary monarchy or an absolute monarchy.
Possibly. Possibly not. We could debate that for a long time. But it is certain that Magna Carta, and everything which it was claimed to stand for, was a significant part of the situation which led to civil war. Everything comes at a cost; everything is connected; and good things can have bad consequences.
Now ~ in our own day, and in our own country, there is a mythologizing and a flagrant misinterpretation, as notable and as bizarre as any seventeenth century deification of Magna Carta, of a certain document.
That document is of course the Treaty of Waitangi, sometimes referred to as ‘the Maori Magna Carta’.
This brief general memorandum of understanding recorded ~ not just in the English translation but in the Maori original ~ an agreement that the Queen should be sovereign over New Zealand and that Maori should be her subjects, with the rights and privileges of British subjects ~ a position of equality before the law.
By some mysterious alchemy the document has come to be widely understood to mean the exact opposite ~ to establish some as yet undefined ‘Maori sovereignty’ or at the least a ‘partnership’ between the Crown and Maori, or between part-Maori New Zealanders and those not of Maori descent.
This process is at least as remarkable as anything that happened in the seventeenth century.
It is complete nonsense to describe the current misinterpretation of the Treaty as anything remotely like Magna Carta.
~ Magna Carta still recognised the sovereignty of the Crown under the law. The misinterpretation of the Treaty denies that sovereignty, either over some parts of the population and country, or completely.
~ Magna Carta gave us equality before the law; the Treaty misinterpretation gives us racial distinction ~ discrimination ~ and legal and constitutional privilege for ever to those of Maori descent.
~ Magna Carta gave us the Rule of Law. The Treaty misinterpretation provides ‘Treaty principles’ ~ which are never, and can never, be closely defined ~ which are inherently vague and liable to be twisted to suit any agenda or demand ~ as an eternal invitation to uncertainty and litigation. This situation will become much worse if any new written constitution were to be visited on our country, for such a constitution would inevitably contain some reference to the Treaty and its principles which would be seized on by politically activist judges.
~ Magna Carta promised us security of property. The Treaty misinterpretation is already a justification for interference with private property rights under the Resource Management Act 1991 and the Heritage New Zealand Pouhere Taonga Act 2014 (the successor to the old Historic Places Act). Although at present there is no power in the Waitangi Tribunal to recommend the ‘return’ of private land to Maori claimants, such was not the case once, and it is not difficult to imagine that such might again be the case in future.
~ Magna Carta attempted to remedy social ills ~ the Treaty misinterpretation is being used as an excuse for the creation and enrichment of a new privileged elite of brown capitalists, while doing next to nothing to alleviate the misfortunes of many others of Maori descent.
~ Magna Carta promised impartial justice. Yet not only are there now regular calls for different sorts of trial and sentencing regimes, based on the colour of ones skin and cultural connexions, but judges have already actually taken racial ancestry into account in sentencing, giving lighter sentences, or none at all, to part-Maori poachers of native wildlife and to those of chiefly rank, whose mana would evidently be injured if they actually stood up like men to take the consequences of their actions. An investigative body, the Waitangi Tribunal ~ thankfully not yet a court of law able to make binding decisions, but whose recommendations are not without influence ~ is of course manned by the same crew who benefit from its recommendations. Has it ever found against claimants? Offhand, I cannot recall a single occasion when it has. If it has, it has not done so very often.
~ Magna Carta promises no taxation without representation ~ yet the Treaty misinterpretation justifies the continued privatisation of public resources and siphoning off of tax revenues to a small racially-defined minority in the teeth of popular opposition.
How are we to explain this mysterious transmutation of the Treaty into the opposite of what it actually was? A political scientist or a sociologist may be able to explain it, but not a humble lawyer. All we can do is observe, with Samuel Butler. That ‘fashion is like God. One cannot look into its Holy of Holies and live’.
Yet despite all these differences, there is one important similarity between Magna Carta and the current mythologised Treaty to observe ~and that is that, just as Magna Carta was a significant part of the rich dangerous mix in which brewed the English Civil War, so too the Treaty ~ no longer seen as a recipe for ‘one people’, but instead officially recognised as a prescription for two eternally-sundered disputing groups ~ is similarly a recipe for strife.
The last generation has revealed a deplorable shortsightedness and stupidity on the part of our political and intellectual class.
I certainly would not go so far as to state definitively that there will be civil war in New Zealand. But I do say that this country enjoys no magical immunity from the laws of history and the tendencies of human nature. History does not exactly repeat, but it does rhyme. The misinterpretation of the Treaty claims to identify two distinct peoples in this country whose interests will always be at odds. Time will tell, of course, but in a future of worldwide and national economic hardship, resource depletion, environmental crisis and international convulsion, it might well be that our still coherent but increasingly tattered nation could be destroyed by the divisive spirits which the dimwits in our political, mandarin and academic classes seem determined to conjure up and nourish.
At present the Treaty, and its misinterpretation, are our Magna Carta ~ so obviously wonderful a thing that it appears unthinkable that anything done in its sacred name can be anything but wonderful. But good things can have bad consequences.
We are so used to our flattering self-description as the social laboratory of the world that we forget that from time to time laboratory experiments fail.
The failures, of course, are as instructive as the successes.
It is surely the duty of historians to raise the examples and lessons and warnings of the past for consideration by the present.
FOOTNOTES:
[1] The authors of 1066 and All That
[2] In The Constitutional History of Modern Britain Since 1485 (Adam & Chas Black, 8th edition, 1966)
[3] In his Ancient Law (1861)
[4] Weasels may not soar like eagles, but neither do they get sucked into jet engines.