Habeas corpus, as far as I understand it, is simply a writ that a detained individual is being held to await the judgement of a legally constituted court of the validity of charges against him:
corpus…habeas…ad subjiciendum et recipiendum ea quae curia nostra de eo adtunc et ibidem ordinare contigerit in hac parte.
It is a constitutional principle only insofar as the writ demands that proof be presented to the court that the detention of the individual is lawful; it also states that without such convincing proof, the court will release the individual. A detained individual has, therefore, the right to challenge the charge and evidence against him before he is formally tried. If the charge and evidence are found to be valid by the court, he will then be remanded to await trial.
There appears to be some debate, at the Devil’s Kitchen and at Tom Paine’s, about whether this appears in Magna Carta. It doesn’t, obviously, as Magna Carta is a charter of liberties, not a legal writ that refers to the detention of a specific individual. However, Magna Carta does protect and confirm the legal necessity for writs of habeas corpus in Article 39:
nullus liber homo capiatur, vel imprisonetur, aut disseisiatur, aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super cum ibimus, nec super cum mittemus, nisi per legale judicium parium suorum vel per legem terre.
The necessity of providing proof that an accused individual ought to be detained, and his right to challenge that proof before a court, already existed in legem terrae; Magna Carta confirms them.
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?
If only those clauses were still in force! But sadly, they have all been repealed over the years.
http://www.statutelaw.gov.uk/content.aspx?activeTextDocId=1517519
By: Steve on 17 June, 2009
at 13.34
The MC exhibit at the British Library claims that all but 3 of the clauses in it have been overridden by later legislation. I’ll have to go back to find out which three they were talking about!
By: JohnOfEnfield on 17 June, 2009
at 17.19
Well of course – most of the clauses have been overridden by legislation that outlines, permits, or encourages exceptions that justify infringement.
By: bellagerens on 17 June, 2009
at 18.48
@ Steve – yes, I see that from your link. There is nothing in the articles of Magna Carta that I listed that is in any way unreasonable or ridiculously permissive; I can only assume that most of them have been repealed because they interfered with one or another of the outrageously illiberal things the state has been doing since.
By: bellagerens on 17 June, 2009
at 18.51
Constitutional statute overides Parlimentary statute as ruled by Judge Law in the case brought aboutduring the imperial and metric weights case that he presided over.
By: chris southern on 17 June, 2009
at 20.01
Looking down the list it would appear that most of them have gone, think fishermen deprived of liberty, boats, money and property, not so long ago either. Judges seem to be lacking any sense of the “Common Law” when one looks at some of the judgements handed down. Then we have the real joker, Parliament, “representing the people who are sovereign and holding the executive to account”. If it did not allow so much suffering it would be farce, for clowns read politicians.
By: Derek W. Buxton on 18 June, 2009
at 10.40
I have read the Magna Carta of 1215 and as a literary exercise created a modern day version called Magna Carta of the English people – 2009. Have a look and let me know what you think.
By: Mark Higginson on 3 December, 2009
at 18.40
Mark – I’m reading through it, and to be frank I see some troubling items, not least of which are compulsory voting and various contradictory entitlements. I realise I am not English, and therefore my opinion in the strictest sense does not count, but I would be very unhappy were such a document as this to come into force. It is rigid, does little to defend the individual from the predations of the state, and displays a number of prejudices I would not like to see continued in the jurisprudence of this country. I’m sorry I cannot be more supportive of your effort.
By: bellagerens on 3 December, 2009
at 19.28
bellagerens – Thanks for taking a look at the Magna-Carta-2009. It is only in it’s first draft stage, yet it is very much in line with how such documents of it’s kind were and are written. I would however, advise you to read it more carefully in that when we read things for the first time we tend to miss things. I know that when I read through it for the first time, after the first writing, I noticed I had made many grammatical errors. There may still be more to correct.
As to rigidity, such documents are rigid in there structure, but not necessarily so in their application. I would suggest you re-read the section on “Rights of the Individual” for example and let me know of your specific concerns for that section.
By: Mark Higginson on 4 December, 2009
at 16.49
I have re-read the section on ‘Rights of the Individual’ as you advise. My concerns are these: many of the rights enumerated here are self-contradictory and absolutely require state-enforced infringement of property. The ‘right’ to ‘free’ health care, the denial of the populace freely to own arms with which to exercise their ‘right’ of self-defence, and the ‘right’ to share in others’ artistic or scientific achievements fall within this category. The duty of the English government to restore a person’s health, self-respect, or dignity is also ominous, first because it is so broad that it would allow a government to claim that almost any action falls within this ‘duty,’ and second because it maintains the fiction that the state has both the power and capability to grant these items. Meanwhile you describe participation in government as a ‘right’ in this section, while in other sections it is clearly compulsory. Finally, persons have a ‘right’ to privacy only insofar as they do not use it to act in a way which ‘could’ lead to court action or harm to others. This directly conflicts with your statement that all persons shall enjoy their rights provided they ‘do not prevent others from achieving the same freedom and rights.’ There is a world of difference between ‘could’ and ‘do’ – the difference between the potential and the actual. Invasion of privacy based upon the possibility of harm, rather than because of actual harm caused, is completely unwarranted, yet clearly this document would not protect the individual from such invasion.
By: bellagerens on 4 December, 2009
at 17.31
AS with the various documents that make up the English constition (Magna Cart1215 and the Bill of Rights 1689 along with it’s ammendment in 1889) it is primarily about restricting the state.
The problems that arise with modern constitutions is that they are a complete reversal with the state giving permission for individuals to be allowed to act in certain manners and for the state to provide certain functions (we need to remember that the state has to take from the people in order to provide said functions!)
Also, what the state grants the state can revoke and the last centuary saw far too much of that.
The state needs to be reminded that it is the people who grant the state it’s very existance for without the peoples consent the state does not exist.
By: chris southern on 4 December, 2009
at 18.19
I see the problem now. Firstly the Magna-Carta-2009 can never take place until the English people have read it in it’s final form and have rejected or accepted it by way of referendum (should they get the chance). Secondly the Magna-Carta-2009 cannot be controlled or altered by the English Government of the day, or the Monarchy. Only the people can alter the Magna-Carta-2009. I refer you to the first section “Maga-Carta-2009 Introduction”.
I have read your comments with interest and shall consider what’s been said. Please remember this is only it’s first draft. Should you wish to make further comment, I refer you to the comments page where you could email me such comments or join the blog’s page, (I hope the thing works?).
If you can, please tell others about the Magna-carta-2009 web page so they to can make their comments known.
By: Mark Higginson on 4 December, 2009
at 19.30
oops, for some reason i typed the dates wrong for the bill of rights, it should read Bill of Rights 1688 and the ammendments of 1689.
i need some new eyes!
By: chris southern on 4 December, 2009
at 20.11