Monday, 15 June 2009

Magna Carta

Today 15th June 2009 is the 794th anniversary of the signing of Magna Carta by King John. To commemorate is I reproduce below an article I had published in the Times Legal Section July 11th 2000 when lawyers were getting all excited about the coming into force of the Human Rights Act. I think the article is still relevant and true today and so I reproduce it below.
Happy Birthday Magna Carta

"On the 15th July 2000 the American Bar Association will be visiting Runnymede to rededicate its monument to Magna Carta. It is perhaps appropriate that this event is happening in the year in which the Human Rights Act is due to come into force since it may help to put that piece of legislation into some historical perspective.

Magna Carta was signed on 15th June 1215 by King John one of the most famous, or infamous, Kings in English history. The reality is that John was probably a better King than his romantic elder brother Richard the Lionheart who spent his entire reign abroad fighting the Saracens, the French and anybody else who got in his way. King John however was not a 'Lionheart' his nickname was 'Softsword' and within fifteen years of becoming king he had lost Normandy to the King of France, subjected England to a papal interdict and alienated almost all sections of society.

John signed Magna Carta to avoid a Civil War he would undoubtedly have lost. His situation at Runnymede being summed up in a Lancashire poem,

"You'd best sign at once" said Fitzwalter
If you don't I'll tell thee for a start
The next coronation will happen quite soon
And you won't be there to take part"

Mediaeval society relied heavily on charters. Every borough, abbey or manor had its charter setting out its own peculiar rights and privileges which even the King was obliged to respect. At Runnymede this concept was, for the first time, extended to the entire country just at the time that the common law was beginning to be developed. The principles of Magna Carta therefore became an integral part of the common law itself and therefore part of the heritage of America and the Commonwealth.

The separation of powers which is today recognised as an essential part of a democratic society developed in England because of Magna Carta. Articles 12 and 14 provided that no tax (scutage or aid) could be imposed unless agreed to by the 'common counsel' of the realm i.e. Parliament. Articles 17 and 18 provided that courts of justice no longer followed the royal court but were instead held in London or in local assizes held at fixed times of the year and out of this developed professional courts and judiciary. Article 39 confirmed that no-one could be convicted of any offence save by the "judgement of his peers" i.e. trial by jury. ( In the same year as Magna Carta the English church refused to sanction further use of trial by ordeal )

Because of these developments by 1608 Chief Justice Cope was able to tell James 1 that even though he was King he was still subject to "God and the Law " and the 1688 Bill of Rights proclaimed that it was not claiming new rights but was instead affirming 'ancient rights'. In France by contrast Louis XIV was proclaiming " L'etat et moi " and royal autocracy persisted in Germany and Russia until 1918.

Reading Magna Carta today it is easy to dismiss it as merely of historical relevance. References to "Scutage" and "Assizes of darrein presentment" make it appear quaint and irrelevant to the modern age but within it there are phrases which are as relevant today as they were in 1215.

Article 40 "To none will we sell, to none deny right or justice" should perhaps be engraved on the Pugin wallpaper in the Lord Chancellor's office for him to contemplate when considering the level of court fees and the policy of making the courts self financing.
Article 39 "No freeman shall be taken or imprisoned ... save by the lawful judgement of his peers" is the basis of trial by jury which may be regarded by the Home Secretary as little more than an expensive legal technicality but which is regarded across the Atlantic as a fundamental principle of democratic society.

As recently as August 20th 1998 the Canadian Supreme Court in a judgement referred to Magna Carta as part of the constitutional and legal heritage of Canadians. The American Declaration of Independence mentions attempts to restrict jury trial as one of its justifications and in both America and Canada the Magna Carta creation of Trial by Jury is today protected as an absolute constitutional right.

On 1st October 2000 the European Convention on Human Rights is to incorporated into UK law. There is however little point in making a great fanfare about 'new rights' if we do not remember, respect and preserve the rights we already have. We are not a state emerging from Fascism or Communism and having to start from scratch to build a democratic society. We are the descendants of Magna Carta and the inheritors of a long and successful legal tradition which has evolved over 785 years. Human Rights is not some gift England is being given from Europe. Human Rights was England's gift to the world !"

1 comment:

mensajes claro said...

The "Magna Carta" sound great .