The august New York Times in this article considered Britain's proposals for pre-trial detention of terror suspects. It quoted Magna Carta thus:
"No free man shall be taken, imprisoned, dispossessed, outlawed or exiled or in any way ruined, nor will we pursue him or send after him, except by the lawful judgment of his equals or by the law of the land."
Regrettably it is necessary at this point to launch into a short lecture on legal history. Magna Carta was written in 1215 (I am aware of the later versions, and how little of the original survives in any form today). It was a covenant between King John and the Barons. The latter were not pleased at the arbitrary rule of the former, and wanted it restricted. Their own influence would be increased thereby. It is therefore not surprising that the original document in fact states "... except by the lawful judgment of his peers ..." By "peers" the gentlemen gathered at that field in Runnymede, between Windsor and Staines, most assuredly did not mean the peasants working the land around them. Anyone who suggested they were conferring on every English subject the right to trial by a jury in its modern form would have found themselves at the wrong end of a Norman broadsword.
Unfortunately that rather basic account has been lost on the journalist Melanie Phillips, who I have taken a few shots against on these pages before. Melanie seizes on the article and says the following:
"Note that no-one shall be imprisoned except by jury trial or ‘by the law of the land’. It is clear that the protection being offered here to individuals was against the arbitrary use of power by the King. The protection against such an arbitrary use of power was to be found both in trial by jury and in the law of the land. The law was itself a protection against such power. So it would seem to follow that if Parliament passes a law enabling the pre-charge detention of suspects, that is itself a protection against arbitrary power by the government, the modern equivalent of the medieval King. Far from betraying Magna Carta, therefore, extending pre-charge detention would seem to be expressly permitted by it.
They weren't fools in the 13th century."
The protection of which Melanie speaks is largely the product of modern interpretations on that ancient document. Its emotive place in the minds of English lawyers started with the likes of Edward Coke in Stuart times, but really would be recognisable in modern form only to modern (that is to say, C20 onwards) readers.
I am all for that symbolism, and there's no doubting the Charter's important place in the development of the concept of individual rights and jury trials, but to attempt to construe the document as though it were the work of present-day legislative draftsmen is pointless nonsense. The Barons probably weren't fools, but I can think of a few twenty-first century writers who are.
On the issue itself, I found the following of interest from the NYT article:
Conservatives (in Britain) argue that 28 days has proved adequate. Since the Sept. 11 attacks, 1,228 people have been arrested under antiterrorism laws, the government says. More than half were released without charges; only six were held for 27 or 28 days, five of them in connection with the reported plot to blow up airliners over the Atlantic in August 2006. Three of those men were let go without charges.
But back to Ms Phillips, and her formalistic interpretation of Magna Carter. Perhaps Melanie, well-known advocate of Jewish rights and assailer of anti-Semitism, would next like to give her opinion on this clause in the charter ... :
If one who has borrowed from the Jews any sum, great or small, die before that loan be repaid, the debt shall not bear interest while the heir is under age, of whomsoever he may hold; and if the debt fall into our hands, we will not take anything except the principal sum contained in the bond. And if anyone die indebted to the Jews, his wife shall have her dower and pay nothing of that debt; and if any children of the deceased are left under age, necessaries shall be provided for them in keeping with the holding of the deceased; and out of the residue the debt shall be paid, reserving, however, service due to feudal lords; in like manner let it be done touching debts due to others than Jews.
Friday, November 23, 2007
Subscribe to:
Post Comments (Atom)
5 comments:
The part of Magna Carta you have chosen to highlight applies to all debts whether incurred in favour of Jews or "debts due to others than Jews". Since at the time most Christians were discouraged from lending money at interest it is not unreasonable to believe that most loans in the 13th century in England had been contracted with Jews. Accordingly, reference to Jews in this context is entirely understandable. Furthermore, the rule as set out is by no means unreasonable even today. Modern estate and bankruptcy law protect vital assets from creditors and would also (cf Chapter 11 of the US bankruptcy laws) act to prevent continuation of payment or accrual of interest.
You choose to attack MP, and by extension, the importance of Magna Carta, by stating the obvious (ie that the barons were acting in their own interest not that of the English peasantry). You could as well attack the US Constitution because its authors were not acting on behalf of black slaves: and so they weren't, but time and principle make the US Constitution a vital step in the exercise of liberty under law: a contribution of the English – and the English speaking peoples - to the world which is no longer taught in schools in England. However, that the barons appeared to be active solely in their own interests does not derogate from the importance of Magna Carta as a basic document in the development of English liberty. By analogy, if the freedom of speech of a lowlife like Larry Flynt is protected then, as Flynt averred, we’re all safeguarded, although I’m sure the Founding Fathers would not have approved of “Hustler” magazine.
Doubtless, MP can defend herself from your criticisms. However, it is curious that your attack on MP, although ostensibly on the grounds of an unexceptionable interpretation of the place of Magna Carta in the growth of English liberty, is in reality because of her generally strident defence of Jews. Moreover, you choose to bait her by citing a clause of Magna Carta which, given the circumstances of the time, would have been extraordinary had it not mentioned Jews. May I suggest – this is, after all, your blog and I am only a guest – that you reserve your ire for the real villains: the present-day political class to whose tender mercies and irredeemable ignorance and arrogance we are all prey.
Hello Umbongo, thanks again for visiting and taking the time to set out a detailed response.
Unfortunately I have to say that once again you have misinterpreted what was an admittedly facetious remark.
On Magna Carta I said this:
"Its emotive place in the minds of English lawyers started with the likes of Edward Coke in Stuart times, but really would be recognisable in modern form only to modern (that is to say, C20 onwards) readers.
I am all for that symbolism, and there's no doubting the Charter's important place in the development of the concept of individual rights and jury trials"
That's not "attacking" it at all; quite the reverse. Just putting it in context and warning that, for all its symbolism, it was not enacted as a modern bill of rights in 1215. That's very uncontroversial in legal circles, and I suspect Mel knows it. So why was she trying to interpret it as if it was a modern document?
Answer: perhaps she was being slightly facetious too, but more to the point she was trying to find justification for detention without charge in Magna Carta. That was plain wrong.
That's why I made the joke about MC on Jews. What it said was intended to deal with the fact that Jewish moneylenders at the time were in a quandry, because religious courts would deny their claims for interest, but secular courts would not; therefore you had the absurd position of the result of any claim turning on the chosen forum. To modern eyes (I hope) dealing with Jewish lenders as a separate class would look odd. I was simply making the point that MC cannot be interpreted as a modern statute would.
I hope that answers your point "it is curious that your attack on MP, although ostensibly on the grounds of an unexceptionable interpretation of the place of Magna Carta in the growth of English liberty, is in reality because of her generally strident defence of Jews."
Nowhere on this blog would you ever find anti-semitism or any attack on Jews or any attack on those who defend the Jews. I invite you to show otherwise.
Not sure what you mean by "you reserve your ire for the real villains: the present-day political class to whose tender mercies and irredeemable ignorance and arrogance we are all prey." but I hope the targets of the political posts herein would correspond to a broadly similar description.
Thanks again for stopping by.
I am not accusing you of anti-semitism. That would be both untrue and, on my part, foolish and unjustified. I just think it odd that in attacking MP for her take on the erosion of civil liberties by our current rulers (who, as I wrote, are the ones on whom you should concentrate your fire) you should should choose to cite the section of the Magna Carta which concerns itself with Jews but is, nevertheless, explicable in the then contemporary economic conditions in England.
MP is famous - or notorious - for her "take no prisoners" attitude when criticising (usually, left-wing) apologists for terrorism. Her views on our civil liberties are coloured by her perceptions of the motives of such apologists who, unlike yourself, can plausibly be accused of anti-semitism.
In a free country, no-one should temper criticism of an opinion – least of all MP’s opinions – because of the hyper-sensitivity on any particular issue of the person putting forward the opinion. However, in all humility, I think you do your case a disservice by mounting what might be viewed as a partially ad hominem argument where a sound ad rem argument exists.
Hello again Umbongo,
Fair enough, I take your point. I simply wished to show that MP was wrong to pretend MC was like a modern statute, I suppose I rather confused the issue by being teasing about it.
I might blog again over the weekend about the actual issue, namely the wisdom of 28 days detention and MP's preferred rather longer period.
PU
I should have added that I disagree completely with MP's view ie that because it is Parliament which passes an odious law (in this case an extension of detention to 50+ days) it is thereby constitutionally acceptable. When the constitutional wrangling was King/executive versus Parliament MP's view might have been correct. Now that the executive effectively controls Parliament - or certainly the Commons - such an absolutist view of constitutional proprieties is mistaken at best and dangerous in any circumstances.
I look forward to your upcoming posting on the issue in question.
Post a Comment