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Magna Carta.docx

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Department
Political Science
Course
CAS PO 191
Professor
Judith Swanson
Semester
Fall

Description
Unit 1, Question 2, Research, Magna Carta THE MAGNACARTA • Part of Britain’s unwritten Constitution: Magna Carta (1215), Petition of Right (1628), and Bill of Rights (1689) • Further promoted by the Habeas Corpus Act (1679): affirmed the longstanding rights of persons held in prison to be brought before a court of law to be charged with a crime or released • Main source of the rights of the accused • Main ideas: trial by jury, due process, habeas corpus, equality under the law 1. No tax shall be imposed without the consent of a common council 2. No one shall be imprisoned, outlawed, or banished unless tried by his peers, following established procedures of justice 3. Justice shall not be delayed or sold to any one 4. Fines shall be given out according to the degree of the offense 5. No property will be taken without just compensation • Foundation of the English and US Constitutional systems; represents the first time the often tyrannical power of the monarchy was restrained by law and popular resistance • During American Revolution-colonists rely on Magna Carta when they convened the First Continental Congress to restore rights lost under the coercive legislation of Parliament • The English held that liberties of England had existed from time outside of mind; It was supposed that they could be rediscovered, by historical research if need be, and re- established where they had been abrogated. In this thought-world, even magna carta was but the restatement of the liberties vouchsafed to Englishmen from the first. The idea was so deeply imprinted that it survived transplantation to theAmerican colonies. • Literal v Symbolic Meaning o Literal: associated with concrete rights enforced by barons against monarchy Unit 1, Question 2, Research, Magna Carta o Symbolic: rule of law; an impartial system of justice and government by consent of the people and their representatives • CLAUSES: 1. No tax shall be imposed without the consent of a common council (12): “No scutage nor aid shall be imposed in our kingdom, unless by the common council of our kingdom; excepting to redeem our person, to make our eldest son a knight, and once to marry our eldest daughter, and not for these, unless a reasonable aid shall be demanded.” (14): “And also to have the common council of the kingdom, to assess and aid, otherwise than in the three cases aforesaid: and for the assessing of scutages, we will cause to be summoned theArchbishops, Bishopes, Abbots, Earls, and great Barons, individually, by our letters. –And besides, we will cause to be summoned in general by our Sheriffs and Bailiffs, all those who hold of us in chief, at a certain day, that is to say at the distance of forty days, (before their meeting,) at the least, and to a certain place; and in all the letters of summons, we will express the cause of the summons being thus made, the business shall proceed on the day appointed, according to the counsel of those who shall be present, although all who had been summoned have not come” • Root of “no taxation without representation” rally cry of colonists • Representative government principle • In the colonies, colonist create representative bodies through state constitutions ect. 2. No one shall be imprisoned, outlawed, or banished unless tried by his peers, following established procedures of justice (39): “No freeman shall be seized, or imprisoned, or dispossessed, or outlawed, or in any way destroyed; nor will we condemn him, nor will we commit him to prison, excepting by the legal judgment of his peers, or by the laws of the land.” Unit 1, Question 2, Research, Magna Carta • Due Process principle 3. Justice shall not be delayed or sold to any one (40): “To none will we sell, to none will we deny, to none will we delay right or justice.” • Due Process principle 4. Fines shall be given out according to the degree of the offense (55): “All fines that have been made by us unjustly, or contrary to the laws of the land; and all fines that have been imposed unjustly, or contrary to the laws of the land, shall be wholly remitted, or ordered by the verdict of the twenty-five Barons, of whom mention is made below, for the security of the pace, or by the verdict of the greater part of them, together with the aforesaid Stephen,Archbishop of Canterbury, if he can be present, and others whom he may think fit to bring with him: and if he cannot be present, the business shall proceed, notwithstanding, without him; but so, that if any one or more of the aforesaid twenty-five Barons have a similar pleas, let them be removed from that particular trial, and others elected and sworn by the residue of the same twenty-five, be substituted in their form, only for that trial.” • Remittance from unfair and unreasonable fines • Right to bail…? 5. No property will be taken without just compensation (56): “If we have disseised or dispossessed any Welshmen of their lands, or liberties, or other things, without a legal verdict of their peers, in England or Wales, they shall be immediately restored to them; and any dispute shall arise upon this head then let it be determined in the marches by the verdict of their peers: for a tenement of England, according to the Unit 1, Question 2, Research, Magna Carta law of Englad; for a tenement of Wales; for tenement of the Marches, according to the law of the Marshes. The Welsh shall do the same to us and our subjects.” ?? o Law of the land principle: (39): “No free man shall be seized, or imprisoned, or dispossessed, or outlawed, or exiled or injured in any way, nor will we enter on him or send against him except by the lawful judgment of his peers, or by the law of the land.” o Rule of Law: (45): “We will not make Justiciaries, Constables, Sheriffs, or Bailiffs, excepting of such as know the laws of the land, and are well disposed to observe them.” o Equality under the laws: (20): “Afree-man shall not be fined for a small offence, but only according to the degree of the offence, and for a great delinquency, according to the magnitude of the delinquency, saving his contenement: a Merchant shall be fined in the same manner, saving his merchandise, and a villain shall be fined after the same manner, saving to him his Wainage, if he shall fall into our mercy; and none of the aforesaid fines shall be assessed, but by the oath of the honest men of the vicinage.” • HABEAS CORPUS o Clause 39 o Rooted in English common law, section 39 of Magna Carta; English aristocrats imposed limits on the power of the King o 1641: Parliament enacts a habeas corpus statute, but not effectual, passes amendment in 1679: Crown prevented from unjustly holding individuals in prison for personal or political reasons Unit 1, Question 2, Research, Magna Carta o Means “you shall have the body” o Authorizes a court to determine the legality under which a person is jailed, imprisoned, or detained by the government. If the court finds that the person was deprived of liberty through “due process of law” continued detention is permissible until trial, where guilt and innocence is determined o US Constitution:Article I, Section 9 “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public safety may require it.” o Writ: a written order from a court of law that requires the performance of a specific act o Requires officials to bring a person whom they have arrested and held in custody before a judge in a court of law, where they must convince the judge that there are lawful reasons for holding the prisoner o Included in many state constitutions (pre-1787)  Northwest Ordinance of 1787 protected habeas corpus  Federal JudiciaryAct of 1789: provided power to all federal courts to “grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment.” o Cases:  Ex parte Merryman (1861): after the outbreak of Civil war, President Lincoln suspended habeas corpus in parts of Maryland. Challenged. Chief Justice Roger Taney ruled that only Congress had the right to suspend the writ, Lincoln ignored the ruling  Ex parte Milligan (1866): Supreme Court ruled that writ could not be suspended in states (in this case, Indiana) where public and safety were not endangered by the Civil War  Fundamental protection of rights: Brown v. Allen (1953): Justice Frankfurter, the writ of habeas corpus is “the best safeguard of freedom in theAnglo-American world.” • RIGHT TO BAIL: Unit 1, Question 2, Research, Magna Carta o English Bill of Rights (1689): “excessive bail ought not be required…” o Bail addressed in other constitutions: Irish Constitution (1937), “the High Court… may…at any time…allow the said person to be at liberty on such bail and subject to such conditions as the High Court may fix…” o Echoed in 8 Amendment (US Constitution) “excessive bail shall not be required” o Schilb v Kuebel: (1971): Court found a bail reform law unconstitutional, declared, “Bail, of course, is basic to our system of law…” • DUE PROCESS o Define: that an individual accused of a crime is guaranteed certain legal procedural rights, such as the right to know the charges against him, to contort his accusers in court, to have legal counsel, and to have a jury trial o Other rights specified in 4 , 5 , 6 , and 8 amendments th th o 5 ,14 Amendment guarantee individuals the right of due process of law  5 : “No person shall be…deprived of life, liberty, or property, without due process of law.”  14 : “No state shall…deprive any person of life, liberty, or property, without due process of law.” •  Government must act fairly, according to established legal procedures, with regard to a person’s rights to life, liberty, and property o Malinski v New York (1945): “The history ofAmerican freedom is, in no small
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