Monday, June 15, 2009

An anniversary

On this day, 794 years ago, King John I signed the Magna Carta Libertatum. The document was, in effect, the first big step in binding the state—the monarch—in law.

One would be foolish to mark the events as being truly English—not least since the Barons were supported by Scots and French troops. None the less, it was something of a milestone in British history and carries, even today, a near mythological status.

This is because Magna Carta established the seminal right of habeas corpus.
Habeas corpus ... is a legal action, or writ, through which a person can seek relief from the unlawful detention of him or herself, or of another person. It protects the individual from harming him or herself, or from being harmed by the judicial system. Of English origin, the writ of habeas corpus has historically been an important instrument for the safeguarding of individual freedom against arbitrary state action.

For this, if nothing else (and very little else remains in effect), we should commemorate the signing of the Magna Carta—for habeas corpus established the foundation of the protection of the individual from the state, provided the basis for Common Law and laid the foundation for England as the cradle of modern freedom.

Put simply, habeas corpus, both quite rightly and effectively, told the state to get to fuck.

No wonder NuLabour have been atttempting, most assiduously, to abolish this fundamental freedom, the devious fucking cunts that they are...

UPDATE: a correction but, nevertheless, an agreement from Tom Paine.
DK is right to celebrate the anniversary, but makes the common mistake of saying that the Great Charter established the Great Writ, habeas corpus. In fact, it makes no mention of it. Blackstone cites the first recorded use of the Great Writ in 1305, but similar writs were issued earlier. Habeas corpus is a keystone of our freedoms, but Magna Carta did not set it in its place.

That'll teach me to trust Wikipedia, eh?
For me, Article 39 of Magna Carta is the most important;
  1. No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.

This established an Englishman's right to "trial by his peers." For a commoner, this meant trial by jury, which has done more to keep us free than any other invention of our fertile civilisation. When it has gone, and we may be apprehended, charged and judged by paid employees of the state, English civilisation will have ended. Every man, however sophisticated his argument, who proposes a limitation of jury trial is King John's spiritual heir and therefore your enemy.

Much of the document deals with the banal interests of the barons who forced King John to Runnymede long ago. Some of the language (for example about the Jews) is offensive to modern ears. That's why it is vital to understand that it is not what this document says that matters. It is what it did. For the first time in history, it limited the power of the state. It ended the rule of men and began the rule of law.

Do go and read the rest...

UPDATE 2: the ever-excellent Bella Gerens—who is both a historian and a Latinist—challenges, to some extent, Tom Paine's view of Magna Carta.
Tom Paine says: ‘For the first time in history, it limited the power of the state. It ended the rule of men and began the rule of law.’

This is not entirely accurate; what Magna Carta actually does is enumerate legal principles that already existed, but which John had routinely ignored or infringed; for the first time, Magna Carta enshrined what all men already held to be true, that the monarch was bound to observe his own laws. That Magna Carta had to be written, and John had to sign it, is merely a function of common law: it created a recorded precedent, thus overriding what had already been convention.

It is also slightly unfair to say that ‘you will be disappointed by’ the other articles.

No. 2 confirms the level of payment of relief upon inheritance – in other words, the Crown cannot demand extortionate inheritance taxes.

No. 3 confirms that underage heirs are not liable for relief/inheritance tax.

No. 4 confirms that trustees cannot plunder an underage person’s inheritance.

No. 7 confirms that widows do not have to pay relief/inheritance tax upon their husband’s death.

No. 9 confirms that only movable goods may be seized for payment of debt – not homes or land.

No. 12, 14, 15 and 16 confirm that no scutage (payment in lieu of service, i.e. tax) can be levied without the consent of those who would be paying it, and even then the Crown cannot demand more than what is reasonable and has been agreed upon.

No. 17, 18, and 19 confirm that people must be tried for crimes in the jurisdiction where they reside or in the jurisdiction where the crime took place.

No. 20 confirms that fines for offences cannot be levied arbitrarily, must be proportionate to the offence, and cannot result in the deprivation of livelihood.

No. 24 confirms that courts held by inappropriate authorities are invalid.

No. 27 confirms that if a man dies intestate, the Crown cannot seize his effects.

No. 28, 30, and 31 confirm that the Crown may not take a man’s property without payment.

No. 32 confirms that the Crown may not freeze or otherwise control a convicted felon’s assets for more than a year and a day.

No. 35 confirms standards in weights and measures.

No. 36 and 40 confirm that the Crown may not deny, delay, or sell justice.

No. 38 confirms that no man may be tried on the basis of hearsay or without the evidence of independent witnesses.

No. 42 confirms the free right of movement into and out of the country.

No. 45 confirms that only men who know and observe the law may be appointed to enforce or decide it.

Each one of these is tremendously important and not a function or product of circumstances limited to 1215. How many of them, I wonder, has the current government infringed?

A goodly many of them, I think. Your humble Devil is no lawyer, but I reckon that—of the above list—various governments over the last century of so (if not earlier) have infringed 2, 9, 12, 14, 15 and 16, 17, 18 and 19, 20, 27, 28, 30 and 31, 32, 35 (but this is superannuanted rather than infringed), 36 and 40, 38, 42 and, it could be argued, 45.

So, most of them then.


Tom Paine said...

I agree entirely with your conclusion and share your appreciation of the Great Charter, but (sorry to be a lawyer about it) you are not quite right about habeas corpus . I have blogged about the subject here;

Politista said...

Nice, but... Magna Carta was not quite all that. John's renouncing it forced a civil war.

S'a nit-pick, because Henry III re-issued it, but with a lot less in there. But it wasn't as important as history lessons teach. Not until it was picked up and made important, later. Although it was the first one that was forced on a King, there were many charters around at that time.

I'm going to repeat a bit of that line, because I like it. It was the first time a charter had been forced on a King. Damn. I enjoyed typing that.

But there were several charters doing the rounds. Magna Carta happens to have survived pretty well, and because it was the one that forced a King to do things he didn't like, it naturally contains things that its adherents /do/ like.

Most of it's only applicable to Barons, who wanted to be able to tell the King where to get off. 'by lawful judgment of his Peers, or by the Law of the Land.' ... That phrase really does depend on what the law of the land is.

The charter weakened the King but strengthened the state.

Gareth said...


Renouncing it forced a civil war then, why isn't the Government's attempts to grind it to dust now doing the same?

It's a good point that The Rule of Law depends on what the law is. We are living under EU law now entirely with the consent of Parliament, and habeas corpus is not a part of it. That is why our current stock of politicians often mention this historic respect for the rule of law without mentioning that until fairly recently, the laws were ours. Made by us, enforced by us and for our benefit.

The professional political class has engineered a time where the State is separate from the people - they are a breed apart, the Police are far removed from their Peelian principles, nanny knows best.

SoldDownTheRiver said...

My (limited) understanding is that the Magna Carta gave irrevocable rights to free men? And enshrined that as the only law of the land subsequently clarified by case law, but not detracted from. I understand that any laws enacted by governments since are statutes (not laws) broadly aligned with commercial contracts and that they are only enforceable by the 'consent of the governed'. I'd really like to know more about this and if anyone has links to good sites with the requisite well argued explanations, I would be interested in seeing them. I am already aware of, and and, but I have yet to read anything that I feel entirely convinced by. To my mind, the ever increasing drive towards state enlargement and mergers does not serve the people.

James Higham said...

You're not wrong.

killemallletgodsortemout said...

...and now we have "habeus claimus", thanks to the Human Rights Act.

bella gerens said...

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.

Is this not basically what habeas corpus is? Perhaps it isn't called that in Magna Carta, but the principle is surely there.

Anonymous said...

Statutes make something legal, legal is contract law.
We are governed by common law not the legal system.

Basicly we are being taken back to when ruling elites decided on the rules and how you were punished.
If you are one of the ruling elite or a close aquiantence then the rules don't neccasarily apply to you (as we are currently seeing.)

As we all know, contracts have to be agreed by both parties. what is happening is that people are being forced into contracts (see all of the on the spot fines which actualy break the bill of rights which is in actual fact a constutional statute which means it trumps the 19991 raod traffic act[parlimentary statute] which means as ruled by judge law, that it over rules the 1991 raod traffic act!)

The rule of a legal system (i.e. corperates having control) is based on the Byzantine system which is so easily coruptable (as we see in the case of the EU) it is something that any sane man/woman (person is a legal term!) should avoid.

just some food for thought

Rob said...

"No free man shall be seized...except by the lawful judgement of his equals or by the law of the land."

New Labour loves those convenient conjunctions.

Budgie said...

"[King] Alfred is perhaps best of all remembered for his famous Law Code. King Alfred's Book of Laws or Dooms came forth from the laws of Kent, Mercia and Wessex. All these attempted to blend the Mosaic Code with the Christian principles of Celto-Brythonic Law and old Germanic customs... the laws of Alfred, continually amplified by his successors, grew into that body of Customary Law which was administered as the 'Common Law' by the Shire and the Hundred Courts."

Anonymous said...

^^^ King ALFRED'S Domesday Book!? I think you mean William the Conqueror's Book of 'Domeste' (Domestic Knowlegde)?

Anonymous said...

i have two ancestors(amongst many)the family is proud of,john(if only his brother had lived)for signing magna carta and oliver for turfing the snot goblin fuckpigs out of the trough.god (family again-merovingian) I hope my destiny arrives soon and the one eyed son of the manse is inextricably involved.