magna carta - american inns of court carta historical & legal background successors to magna...

Is it worth the vellum it’s written on? American Inns of Court Robert W. Calvert Inn November 11, 2014

Runnymede

Magna Carta

Magna Carta

Historical & Legal Background

Successors to Magna Carta

The Lineage of the Rule of Law

Rule of Law and the Inns of Court

Employing the Inn’s Creed

Historical &Legal Background

King John

The barons have King John over a barrel

June 15, 1215

And they lived happily ever after?

1215-1216: The Immediate Aftermath of Runnymede

Noncompliance

Annulment

Civil war

Invasion

Death

1216-1225: A New King and Successive Charters

Young King Henry

Charters of 1216 and 1217

Charter of 1225

What did the 1215 Magna Carta say?

Solutions to Contemporary Grievances and Problems

Reforming feudal obligations (cls. 2-8)

Reforming money-lending (cls. 10 and 11)

Preventing forced bridges (cl. 23)

Provisioning castles (cls. 28, 31)

Dismantling fish weirs (cl. 33)

Standardizing weights and measures (cl. 35)

Reining in abuses related to the royal forest (cls. 44, 47, 48)

Limiting women’s testimony (cl. 54)

King’s customary rights on a baron’s death

Succession tax

Escheat

Right to sell widows into marriage

Underage heirs – right to guardianship and profits right to sell heir into marriage

The King and money-lending (King John penny – 12th c.)

Provisioning royal castles

King John and the royal forest

Bridges (13th c. bridge)

The 13th Century Woman

River weirs

Seeds of the Rule of Law

Liberties and rights of English Church (cl. 1)

Liberties and customs of London and other towns (cl. 13)

Rights of free men to justice and a fair trial (cls. 39, 40)

Clauses 39 and 40

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 judgment of his equals or by the law of the land. (cl. 39)

To no one will we sell, to no one deny or delay right or justice. (cl. 40)

Short-Term Uncertainty

1227: Henry III questions validity of past charters

1297: Edward I reissued both 1225 charters in return for a new tax

Remains on the statute books of England and Wales A copy of this version is the only one currently in private hands

Magna Carta Remains in Flux

1305: Pope Clement V annuls Edward I’s confirmation of the 1225 charters

13th to 15th centuries: Magna Carta reconfirmed 32 to 45 times

Changing Historical Perspectives

Mid-1400s to mid-1500s: Early version of Parliament

Magna Carta just another statute

Mid-1500s to 1700s: Flawed histories increase Magna Carta prominence

Armed force still needed to bind the Crown

Repeals in 1800s and 1900s

1829: First repeal of a Magna Carta clause

1863: Statute Law Revision Act in England and Wales

1872: Statute Law (Ireland) Revision Act in Ireland

Only a few provisions remain

VIDEO http://youtu.be/MTt-ewgKm5A?t=2m50s

Legacy Spanning the Globe

The United Kingdom

England

N. Ireland

Scotland

Wales

England & Wales

1215 Magna Carta expressly applicable to lands of England & Wales.

3 clauses from 1215 Magna Carta which are still current law:

Article 1: Liberties and rights of English Church Article 13: Liberties and customs of London and other towns Articles 39: Rights of free men to justice and fair trial & still considered part of uncodified constitution

Scotland & Northern Ireland

Scotland: Then King Alexander II of Scotland was a party to the Magna Carta, but he was both King of Scotland and a Baron holding lands in England.

Magna Carta not expressly part of Scottish law.

Northern Ireland: British and English statutes applied to Ireland in their original enactment or were subsequently applied to Ireland under King of England from 1066-1241 and the Parliament of England (1241-1706).

UK as part of EU 2000 - Charter of Fundamental Rights of the European Union

2009 – Treaty of Lisbon entered and brought Charter of Fundamental Rights of EU in full force.

British & Polish Protocol: “Charter does not extend the ability of the Court of

Justice of the EU, or any court of tribunal of Poland or of the UK, to find that the laws, regulations or administrative provisions, practices or actions of Poland or of the UK are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.”

India

Constitution of the Republic of India

Ratified in 1949 2 years after independence from Britain

Contains language echoing US Constitution

Australia & New Zealand

ONLY Chapter 29 of the 1297 version is part of the statutory law under Imperial Acts.

The High Court of Australia limited the extent of the Magna Carta’s influence in 1989 in Jago v. District Court.

New Zealand Bill of Rights Act of 1990 (NZ) codified New Zealand’s interpretation that Chapter 29 DOES ensure a speedy trial.

Canada

The text of the Magna Carta has not been incorporated into Canadian law.

However, concepts in the Canadian Charter of Rights and Freedoms descend from concepts in the Magna Carta.

Section 9: freedom from arbitrary detainment or imprisonment.

Section 10: right to legal counsel and appeal against unlawful imprisonment and the right to due process (from Article 39)

Section 11: right to jury of peers

Revolutionary France

National Assembly formed which rejected the authority of nobles and clerics and sought to impose a constitution on the king. Resistance from the monarch lead to the French Revolution.

National Assembly adopted the Declaration of the Rights of Man and the Citizen in 1789.

“Law can only prohibit such actions as are hurtful to society. Nothing may be prevented which is not forbidden by law, and no one may be forced to do anything not provided for by law.”

Carta of Imperial Russia

Empress Catherine II granted in 1785.

“Russia’s Magna Carta”

Step towards Rule of Law

Is Asia Changing?

ASEAN Human Rights Declaration

6 section on general principals, civil and political rights, economic, social and cultural rights, development, peace and international cooperation in the promotion and protection of human rights.

Adopted but not without

controversy… “Cultural Relativism”

the wide open back door to the ASEAN Human Rights Declaration

where the “particularities” of the local government would dictate.

China

Imperial period was characterized by the concept of law as serving the state.

In the late Qing dynasty there were efforts to reform the law including importing German codes with modifications.

Resulted in Provisional Constitution of 1912.

1954 Constitution of the People’s Republic of China

Constitution states it’s own supremacy. However, still subject to supremacy of the Communist Party “Rule of Law” vs. “Rule by Law”

Universal Declaration of Human Rights

Eleanor Roosevelt, 1948: “This declaration may well become the international Magna Carta of all men everywhere.”

United Nations

Legacy in the United States

United States

Declaration of Independence

Federalist Papers

The Constitution

Bill of Rights

United States

(39) 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.

(40) To no one will we sell, to no one deny or delay right or justice.

Magna Carta (1215)

Texas

Sec. 19. DEPRIVATION OF LIFE, LIBERTY, ETC.; DUE COURSE OF

LAW.

No citizen of this State shall be deprived of life, liberty, property, privileges

or immunities, or in any manner disfranchised, except by the due course

of the law of the land.

Texas Constitution, Article I, Section 19

Sec. 13. EXCESSIVE BAIL OR FINES; CRUEL AND UNUSUAL

PUNISHMENT; REMEDY BY DUE COURSE OF LAW.

Excessive bail shall not be required, nor excessive fines imposed, nor

cruel or unusual punishment inflicted. All courts shall be open, and every

person for an injury done him, in his lands, goods, person or reputation,

shall have remedy by due course of law.

Texas Constitution, Article I, Section 13 Both of these due process provisions in the Texas Constitution have their

origin in the Magna Carta. Sax v. Votteler, 648 S.W.2d 661, 664 (Tex.

1983). Both have been present in the Texas Constitution since 1836.

Texas Constitution

Texas Constitution

“The open courts provision's history also reflects its significance. It originates

from Chapter 40 of Magna Carta, the great charter of English liberties obtained

from King John in 1215: “To none will we sell, to none deny or delay, right or

justice.” Tex.Const. art. I, sec. 13, interp. commentary (Vernon 1984); 14

Encyclopedia Britannica 576 (1967). Colonists brought to America and then to

Texas their belief in the historic rights guaranteed by Magna Carta. 1 G.

Braden, The Constitution of the State of Texas: An Annotated and Comparative

Analysis 3 (1977); F. Stewart and J. Clark, The Constitution and Government

of Texas 5 (1936). The right of access to the courts has been at the foundation

of the American democratic experiment.”

LeCroy v. Hanlon, 713 S.W.3d 335, 339 (Tex. 1986)

Sec. 13. EXCESSIVE BAIL OR FINES; CRUEL AND UNUSUAL

PUNISHMENT; REMEDY BY DUE COURSE OF LAW.

Excessive bail shall not be required, nor excessive fines imposed, nor

cruel or unusual punishment inflicted. All courts shall be open, and every

person for an injury done him, in his lands, goods, person or reputation,

shall have remedy by due course of law.

Texas Constitution, Article I, Section 13

Texas Constitution

VIDEO http://youtu.be/FGK8IC-bGnU

Common Thread: The Rule of Law and What that Means

Lineage of the Rule of Law

The Rule of Law

What is it?

The Rule of Law

Law Education First Recorded in 1st c. B.C.E.

First Law Degree Recorded in 1245 C.E.

Justinian’s Code – 533 C.E. Did not create law, it recorded law

The Rule of Law

King Edward III – 14th Century

Established the “Common Law”

Not common law, but common procedures

The Rule of Law

Words in Soviet Constitution superior to U.S. Constitution.

But was it in application?

The Rule of Law

Curtis Bok, state judge

Robert Straus, ambassador

Alexis de Tocqueville, author

The Rule of Law

What is it?

Commitment to Due Process

The Rule of Law and the Inn

In 800 years:

What we once did with swords

We now do with lawyers

Crisis for the Rule of Law

Not just attack on the jury system

Or ensuring and independent judiciary

Too many young lawyers with no firm or job to mentor them

Too many people needing legal assistance

Where will professionalism and ethics be taught?

Where will corners be cut?

VIDEO http://www.americanbar.org/groups/leadership/office_of_the_president/legal_access_jobs_corps/video1.html

Solving our Crisis

Can’t be done in the 80 minutes we have been here

Will require each member of our profession and Inn to make it right

What part in this mission will this Inn play?

Mission of Inns of Court

Foster excellence in: •Professionalism •Ethics •Civility •Legal skills

Bridge the Gap

Mentor young lawyers

Provide web based access to trial information

Incubator program

Pair seasoned attorneys with young attorneys with VLS cases

Legal calendar resource for clinic information

Gauntlet to the Inn

Bridge the Gap

Austin Bar Foundation/Association Task Force

Tuesday, November 18, 2014 @ 12:00

816 Congress, Suite 700

RSVP Laura@sharpfirm.com / 512-658-3504

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