New Zealand Law Society - Hon Sir Grant Hammond KNZM, LLD

Hon Sir Grant Hammond KNZM, LLD

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Magna Carta is an odd but iconic legal document. It still retains some legal force today. And its central philosophy is of central importance.

It can only be understood in terms of its own peculiar history. King John was a quarreller, not least against the Pope, his older brothers Henry, Richard and Geoffrey, and many barons. Disputes between John and the feuding barons grew steadily throughout his reign. There were disagreements about increased taxes and feudal duties. John on the other hand needed money to finance his campaigns. His taxation methods were brutal. They led to confiscation of land when barons had not the ability to pay. Preferences were sold, often going to foreign friends and relatives of the King. Essentially, Magna Carta was a peace treaty in response to an ever-escalating political crisis.

The form of the document had its oddities. There are some 4,000 words in it. The King did not actually sign it although his great seal was placed upon it. It dwarfed the Treaty of Waitangi with several dozen copies produced over many weeks. These were sent around the country to enable people to know about it.

There had to be somebody to enforce the treaty. Among other things Magna Carta states that the barons would elect 25 of their number to ensure that the King abided by the terms agreed. These included an extraordinary power to seize the King’s land and possessions for redress of breaches by him. This established the fundamental principle of greatest significance: the King himself had to act under the law.

By the standards of the time it was quite a lengthy document. Many of its terms were dropped or rewritten when it was reissued in the 13th and, I believe, the 14th centuries.

Only four clauses still remain on the United Kingdom Statute Book today, and to a limited extent in our Constitution, in the due process concept. Originally the right to due process of law in clauses 39 and 40 was meant to be only for free men in a feudal society. But later interpreters extended these rights to all people. Original intent? Or a growing constitution? Same old debate!

The four clauses are:

  • Clause 1 grants freedom to the English Church without interference from the Crown.
  • Clause 13 gives London and other cities and towns and ports the right to commerce without interference by the King.
  • Clause 39 is the foundation of the principle that everyone has the right to a fair trial.
  • Clause 40 is thoroughly modern for a feudal society: that everyone is equal in the eyes of the law.

Documents of this kind never come absolutely “complete”. Critical constitutional documents, in particular, take on a life of their own. They are, as one poet said, “Comets with brushes tails” and they continue to reside in our constellation with long-lasting and significant impact.

We in the 21st century of New Zealand have a Bill of Rights. But the essential concepts in it were around for over a thousand years, giving voice to the proposition that everyone is equal in the eyes of the law and has the right to a fair trial. And wouldn’t you just know it: in 1840 we hadn’t quite learnt from Magna Carta because many of the copies of Magna Carta, although they are “originals” and purport to say the same thing, are slightly different in expression as they were written by different scribes. Sound familiar?

The essential message of Magna Carta however is that the deep human concepts around what is required in a civilised and unified jurisdiction run back across the centuries. They are part of our very humanity.


Sir Grant was admitted in 1967 and was a partner of Auckland firm Wiseman & Hammond and Hamilton firm Tompkins and Wake before taking a teaching fellowship at the University of Illinois and Professorships at Dalhousie University and the University of Alberta. He became Professor of Law at Auckland University in 1988 and Dean in 1990 until his appointment to the High Court bench in 1992 and the Court of Appeal in 2004. He was appointed President of the Law Commission on 1 December 2010 and has since been reappointed until May 2016. Sir Grant is the author of numerous published articles and books, including Judicial Recusal: Principles, Process and Problems (Hart Publishing, 2009).

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