My own blood raised too a few weeks ago after the last parliament had been dissolved when i received my own writ of summons, sealed with a seal, giving me exactly 40 days notice of a Certain Parliament to be holden at our city of westminster. Harking back, i felt sure to chapter 14, of the original magna carta, to obtain the Common Council of kingdom out an aid, we will be summoned the archbishops, abbotts, earls and greater bands, individual letters. And in addition we will be caused through our bailives for a fixed state namely after the expire of at least 40 days and to an affixed place. This is the foundation of a second principle which we can trace at least as far back as magna carta that the people for whom the taxes are levied should have a voice in deciding what they should be. Usually embodied in the saying no taxation without representation, i understand has a special significance in the district of columbia. As i also understand it was the ignoring of that principle which lost us the american colonies. [ laughter ] i ought therefore to protest myself. Because as a member of the house of lords, i do not have a vote in the election of members of the house of commons. After all, i got my own writ of summons before the election which decided who those members were to be. And since they left the house of lords to become the Supreme Court of the United Kingdom in 2009, neither do i have the right to sit or vote on any Parliamentary Business in the house of lords. So i am doubly disenfranchised. Perhaps i should go to strassberg to protest along with the prisoners and others who dont have a vote in my country. Another of my favorite provisions from the original charter is chapter 45. We will not make justices, constables, sheriffs or bay lives as no of the law of the kingdom and mean to observe it well. Thats rather a good phrase, isnt it . This is but one of the many embodiments in the charter of the third ideal with which it is most associated. The idea that the king and his officials were as much subject to the law of the land as were the rest of his people. The rule of law is not oneway traffic. The law which only the governed have to obey. The governors have to obey it too. And indeed by chapter 60 of the original charter, the customs and liberties which the king had granted to our men, meant by men, the bounds had also to observe towards their men. They cascaded down through the futile ranks. These three great ideas, the essentials of modern constitutionalism, can all be found in the original magna carta of 1215. The idea that fundamental rights can only be taken away or interfered with by due process and in accordance with the law. Although, when i get to the end of my lecture you will see there is still a debate about whether and means and or and means all. The idea that deposit rests upon the consent of the governed and the idea that the government as well as the governed is bound by the law. No wonder the lawyers get so excited about it. All three ideas do of course beg for question of where the law comes from and who makes it. But ill come back to that. Historians, at least in my country, tend not to be so excited about the magna carter of the 15th of june of 1215. They point out that it was not so different from the charters of other kings. That much of its contents were simply reaffirming generally understood principles of futile law. And above all, that its most radical provisions were soon dropped. But while the story of how the baron succeeded in extorting the charter from the king is quite exciting. The story i have next is i think even more exciting. Only a few days after the charter was sealed on the 15th of june, king john asked the pope iii to release him from his oath to observe it. And on the 24th of august, the pope obliged. King john had sworn to the pope and the pope owed him something in return. He denounced the charter as extorted by, quote, such violence and fear as might affect the most courageous of men. He forbad king john to keep his oath to observe it, and the barons that tried to make him do so. And declared the charter null and void for all validity forever. So you might have thought that was that. The result was civil war between the barons who extorted the charter and the king and those loyal to him. It looked as if the barons were going to lose until they per swayed the king of france, prince louis, to whom they had already offered the crown, to invade. The french are a lot of trouble in my country. And this he did. In may 1216. He laid claim to the throne. Both by hereditary succession. Unremarkable but untrue. And by election by the barons. Remarkable but true. But he didnt promise to abide by the charter. By october, it looked as though john were heading for defeat when he set out across the wash. You probably dont know, but the wash is a large, shallow bay in the east of england. He was crossing it in order to reinforce his garrison. John made it across the wash. But most of his baggage did not and sank into the sounds. He struggled on to newark, south of lincoln, but died there on the 18th of october. Thus, as recorded in a book called 1066 and all of that, which is known which is advertised to comprise all the parts of english history which you can remember. In other words, its mostly wrong. John finally demonstrated his utter incompetence by losing the crown and all his clothes in the wash. And then dying of peaches and no cider. Thus his awful reign came to an end. His body was conveyed to abbey for burial. Things did therefore not look promising for his heir, his 9yearold son. But earl of pembroke, the kings most loyal servant, quickly took chart. With accurate of the colonel, he arranged for henrys coronation in gloucester and was appointed regent of king and kingdom. The court traveled to bristol, which was then the second city in the kingdom. I myself am pleased to know that because i am chancellor of the university of bristol. So i have a strong connection with that city. And so a great affection for the fact that in bristol the king was advised to reissue magna carta. And this was sealed by marshall and the cardinal because the boy king had no seal of his own. Now, this, the magna carta of 1216, which is also reissued in 1217, formed the basis for the magna carta of 1225, which king henry granted where he had acquired a great seal of his own. And those are the ones that really matter. The 1216 carta is very different than the one exacted by the balance. They might call it a typical english compromise. Designed to reassure the barons the legal rights they cared about most were preserved but also to preserve the status of the monarchy. Most importantly, it didnt contain the original chapter 61, which had given to 25 barons to be chosen by the rebels, extraordinary powers to enforce the provisions of the charter against the king and his officials known as the security clause. These powers were what had most invoked the indignation of the pope and the futile purists. Some required that it be dropped because they were deemed specific to the political situation in 1215. Other chapters were described in the 1216 charter as important yet doubtful. Isnt that a clever phrase . And so they were to be deferred until we have full council when we will most fully in these as well as other matters that have to be amended do what is for the common good and the peace and the state of ourselves and our kingdom. And among these were the chapters dealing with aides, including my favorite chapter 14 are summoning the Common Council, et cetera, et cetera. But of course the principle of no taxation without consent came back in other ways. And it was because of these exclusions that the famous chapters 39 and 40 of the 1215 charter were formed to combine charter 49 of 1216 and all subsequent charters, including the charter of 1297, which was a nulled on the english statute book. Making laws having emerged during the 13th century. In granting the 1297 charter, edward the 1st did no more than quote the 1225 charter of his father henry iii. You would of course know this because there is one of those 1297 charters in your national archives. And of course you can read it, cant you . Despite the writing and the latin. Anyway, three significant changes to the 1225 charter and the 1297 from the 1215 and 1216 charters. It was granted by the king of our own spontaneous goodwill. It was not granted on the advice of his counselors who merely witnessed it. But in return for this grant and gift of these liberties, the archbishops, bishops, abbotts, earls, barons, knights, freeholders and all of our realm have given us a 15th part of their moveables. A tax. No longer a product of coercion, it was nevertheless a contract with the people. Liberty and the rule of law in return for the taxes the king needed to maintain his state and wage his wars. But henry iii was still around in 1225 to reissue the charter. It was largely due to william marshall, his regent, the best knight in all the world. In 1217 he and the loyalists defeated the french army and their english supporters with the battle of england. The french fleet was defeated in a battle in sandwich and kent. They promised never to assist the rebels again. The rebels were pardoned. They were still excommunicated but that didnt matter quite as much as having their lands restored to them. And as the historian david starky puts it, magna carta was revolutionary. The idea of monarchy was shaken to its foundations. The republican challenge was real. That it all ended in a classic english compromise was not inevitable. But the central ideas of magna carta were retained in the reissue of the charter in 1216 and became invaluable. So lets fast forward now to the 17th century. The century of the english revolutions and the century of the english colonization of america. The english laws are not entirely forgotten in the intervening years. Magna carta was, after all, on the statute book. Procedures for putting chapter 29 in were developed. Putting them into effect had been developed. Magna carta was first print indeed latin in 1508 and in english in 1534. I believe you have on show downstairs a couple of one of the Early English printings of magna carta, which is a wonderful thing to be able to see. Lawyers would also be familiar with the treatises on the laws and customs of england. Glanville writing in about 1190, before magna carta, said what pleased the prince has force of law. But brackton writing in 1250, after magna carta, had said instead, whatever has been rightly written and approved a general agreement has the force of law. The king in parliament, in other words. As he explained, the king not to be subject to man but to god and the law. Lawyers might also be familiar with the chief justice under henry vi when he said that the king of england cannot alter nor change the laws of his realm at his pleasure. He can neither change without consent of the subject yet charge them with strange imposition against their wills. But this was not on the lawyers minds. He was given almost mythical powers in 1606. Just as the battle between common law courts and the powers of the king were developing nicely between the king and parliament. The three ideas that a person should not be deprived of his liberty or property without due process of law, there should be no taxation without Common Consent and that there there were limits to the Royal Prerogative featured prominently in each of those battles. The great charter of the liberties of england was referred to in the petition of right in 1868. He was an elder statesmen and sacked as kings did in those days for unpopular decisions in 1616. Presented by cook to the house of laws. Accepted by them and reluctantly and unequivocally given to him for the taxes he needed to raise. I fear the teaching as such is that they probably dont. The king tried to rule without parliament. That was a civil war between the royalists, also known as cavaliers, styled were wrong but were romantic in 1866 and all of that. And the parliamentarians, also styled round heads, who were right and repulsive. Thats about correct actually. The round heads won the war. The king was put on trial for treason and executed in 1649. His cause for the adjournment of the trial were met by the good words in the great old charter of england. To no one will we delay justice is what they meant. But conquerer, oliver cromwell, was not a great respecter of Civil Liberties either. Thats according to clarendon, history of the rebellion. Whether its an accurate quote who can say. But according to clarendon, historian, the monarchy was restored in 1660, but once again became precarious when james assesses his powers. The glorious revolution of 1668 was the result. William, married to james daughter, mary, was invited to invade. James fled. Parliament offered the crown to them both but on conditions. The bill of rights in 1669 and the sovereignty of the king in parliament was firmly established. The king alone could not make law or suspend or dispense the operation of the laws which parliament had made. The bill of rights also prohibits successive bail and cruel and unusual punishment. But it is mainly about the power of parliament and not about the rights of individuals. Meanwhile, while all these exciting things were going on in the old country, of course, the english were establishing their american colonies on the other side of the atlantic. They took the cammon law and the m magna carta with them. The Royal Charter in virginia in 1606 was partly the work of cook and asserted they were to enjoy the same rights as the english possessed in the homeland. Some colonies chose to create their own magna carta like institutions such as the body of liberties in massachusetts bay, the first sector reads remarkably like chapter 29 of the 1216 charter, except he also refers to the word of god, which was not, of course, particularly prominent in the early versions. William penn is credited with the first printing of the great charter and used it in framing the laws of pennsylvania. He had had of course firsthand experience of the battle for english liberties before he came over here to found the colony. So it was that the common law and the magna carta which motivated was it the common law or magna carta which motivated the declaration of independence in 1776 and the framing of the new constitution in 1787. Well, you will know much better than i the answer to that question. But it seems to be obvious that the denial of their heritage as englishmen would have played a part in the demand for independence. But the framing of the new constitution would have needed something more. The lawyers will have known all about the writings of cook and also of blackston the academic scholar of english law who in 1759 had disentangled the different medieval versions of magna carta. They will have known about the struggle for Civil Liberties in the late 18th century britain. The colonists had no vote which was now sovereign and could override their ancient rights. Which they directed to propose taxes on them without representation, they could cite magna carta when they revolted and declare their independence. On the other hand, important though the appeal to ancient history is, the framers of the constitution were looking to create a new model of government. Magna carta had at least three defects from their point of view. It was a grant from the king rather than the work of the people. It could be overridden by a Sovereign Parliament. And it limited only the operation of government and not of the legislator. For the framers, it was the people, not the parliament, so less the king in parliament, who was sovereign. And invested the constitution that they adopted with its authority. They were soon persuaded it was also necessary to enshrine the freedom in the bill of rights. But did its motivation come not so much from the appeal to ancient history but from the appeal of nature and reason . From the puritan between god and his people and john locks theory of natural rights. As i say, you will know the answer to that much better than i do. Theres an awful lot of writing about it. Be it as it may, having marched together for two centuries, they the constitutions of the United States and the United Kingdom went their separate ways for the next two centuries. We in the United Kingdom had to wait until the human rights act of 1998 before we had a proper bill of rights which sought the citizens of the United States of america were recognized. This developed after the universe and declaration of human rights in 1948, which Eleanor Roosevelt described as an international magna carta of all men everywhere. Impatient at the lack of progress by the United Nations in translating aspirations into binding obligations in international law, the council of europe enshrined a similar Political Rights in the European Convention on human rights of 1950. Article v, protecting the right to liberty and security of person, bears a remarkable resemblance to chapter 29 of magna carta. The jurisprudence of the European Court of human rights gap to develop in ernest once Member States accepted the right of individual to petition the court against their own governments. Many of the seminole cases which established the fundamental doctrines by which the convention is interpreted came from the United Kingdom. The complacency against the english royals who thought that it embodied rights which for the most part the english had enjoyed for century shaken by a number of adverse decisions in strasberg. Eventually our Sovereign Parliament decided that these rights should be the rights of United Kingdom law and forcible in the United Kingdom courts. It is still not a proper bill of rights in the american sense or indeed the sense of many other written cobbs constitutions in the modern world. Uk courts do not have the power to strike down a progression in an act of the United Kingdom parliament, which is incompatible with the convention right. All we can do is so far as it is impossible, we can interpret the provision so it is not incompatible. There is an amazing amount you can do with interpretation. [ laughter ] i wont give you any examples now, but there is a lot we can do. Or if this is not possible, we can make a declaration of incompatibility. Parliament then has three choices. First, it can swiftly approve a remedial ordering council which removes the incompatibility. Thats suitable for simple cases. Second, it can pass an act of parliament providing a comprehensive scheme to deal with the incompatibility. Third, it can do nothing and risk the wrath of the council of europe. So far all the 19 surviving declarations of incompatibility have been acted upon by the United Kingdom parliament. So most of the time it works. The one exception is that they have not yet brought themselves to amend the socalled blanket ban on sentenced prisoners voting in elections. Now, when they do that, can they please tack on that those lords who cant vote and play a part in the house of lords can vote . Might i suppose sugar the pill. Of course not only that, what parliament has granted parliament can take away. The conservative Party Manifesto before the recent general election promised to scrap the human rights act and introduce a british bill of rights. This will break the formal link between the british courts and the European Court of human rights and make our own Supreme Court the ultimate arbiter of human rights in the United Kingdom. I wish. However, in the queens speech to the new Parliament Last week, the new government promised only to bring forward proposals for a british bill of rights. So we shall have to wait and see what they contain. The human rights act has given us the tools with which positively to protect the fundamental rights against the organs of the state. But it has also made us think rather harder about the content of fundamental rights in the common law. And to wonder whether we, too, have a concept of constitutional statutes which are different from ordinary acts of parliament. All of this has been taking place against a backdrop of the atrocities of 9 11 and Later International developments, which have brought new challenges to the fundamental values which we associate with magna carta. We tend to think that the american courts are far more conscious of magna carta, than we are. Steve son calculated in 1991 that between 1940 and 1990, the Supreme Court of the United States had cited it in more than 60 cases. We have found another 31 u. S. Supreme court cases since then, including nine in the last ten years. As far as we can discover, it has been referred to in judgments in only 24 cases before the house of lords, the Judicial Committee council, and the uk Supreme Court. But six of those are in the last 10 years. Does this indicate a renewed interest in the values it embodies . In 2003, in the court of appeal, lord justice laws held that there is a category of constitutional statutes, including magna carta, but also the european communities act of 1972, which cannot be implied, repealed or modified by a later ordinary act of bond. And last year the Supreme Court questioned whether one constitutional statute could impliedly modify another. The case was a challenge to the governments decision to gain planning consent and the necessary powers that the construction of a new highspeed rail link between london and the midlands. Apparently its not going to go to scotland which is not going down well in scotland. And the challengers argued that parliamentary scrutiny would be in adequate to comply with the european directive on Environmental Impact assessments to which of course we are bound by the european communities act. Until the case got to the Supreme Court, no one had taken the point that for us to inquire into the adequacy of the parliamentary process would be contrary to article 9 of the bill of rights of 1689 which provides that freedom of speech or debates or proceedings in parliament ought not to be impeached or questioned in any court or place out of parliament. Lord new berger and a joint judgment in which the rest of us all agreed referred to a number of constitutional instruments, including magna carta, the petition of rights 1628, and the bill of rights 1689. And continued. It is certainly arguable that there may be fundamental principles whether contained in other constitutional instruments or recognized at common law of which parliament which passed the act in 1972 did not contemplate or authorize the aberration. This is heavy stuff. For those of us who were brought up to believe that parliament can make or unmake any law. It falls well short of constitutional infringement. Not only that, our courts have become more vigorous in applying the principle of legality by which parliament is presumed not to authorize the aber gags of a fundamental right unless it does so in plain language. So that any parliamentarian would understand what was at stake and be prepared to take the Political Risk in agreeing to it. Fundamental rights are not to be overwritten by general or ambiguous words. This means, i think, that three of the earlier cases in which magna carta was mentioned in judgments of the house of lords might have been decided differently today. In the case of halladay during the first world war, the majority of the house of lords decided that the broaden abling powers of the defense of the match in 1914 permitted regulations to be made which authorized the internment of persons with hostile origins or associations. Lord shaw disagreed. The most famous provision of magna carta itself could not be regulated in this way. He poured scorn on the majority view. No rights be as ancient as magna carta, that laws as deep as the foundation of the constitution, all are swept aside by the in the executive. Then again, during the second world war, in two cases green and the secretary of state of affairs and anderson, the majority held that the home secretarys power to authorize detention where he had reasonable cause to believe that the grounds existed, did not mean that he actually had to have reasonable cause. Only that he had genuinely to think that he did. They rejected counsels arguments that provisions that took away the fundamental rights to liberty and due process covered by magna carta had to be narrowly construed. Interestingly, in his famous descent, the lord did not refer to magna carta at all. He regarded it as a simple question of the meaning of words. And the only authority he could think of for the view taken by the majority was humpty dumpty. When i use a word, it just what i choose it to mean. Neither more or less. The question is, said alice, is whether you can make words mean so many different things. The question is, said humpty dumpty, which is to be master . Thats all. I told you you could do a lot with the meaning of words, didnt i. Maybe his reluctance to rely on magna carta, these regulations put magna carta in the dust bin. I do not know. These days, while i believe that we would share his view of the words themselves, we would also take the view that any legislation interfering so drastically with the liberty of the subject should be strictly construed. And the relaxed view taken by the majority of the house of lords to the deprivation of liberty in times of war contrast with their much stricter view taken of the deprivation of property. In both the Central Control board, and the more famous attorney general under keysers royal hotel, they contrived to find that wartime powers to requisition property have not deprived the owners of their rights to compensation. And lord palmer in each case opined that at least since magna carta they had no prerogative power to confiscate property for his own benefit. These days we would have to judge such cases not only against the fundamental principles of common law but also against the human rights act. Der regags is possible in times of war or other emergency threatening the life of the nation. But even such deregagss have to be justified. We held the power given to the executives shortly after the atrocities of 9 11 to sustain suspected Foreign Terrorists without trial was unjustifiable discriminatory against foreigners. If there was a real need for such a measure, we have plenty of homegrown terrorists of our own who needed it too. I like to think, with or without the human rights act, we would have reached the same conclusion as the majority of your Supreme Court in the most famous of those nine recent cases in which magna carta has been cited in that court. Under the human rights act, it would have been easy. The act governs the actions of british authorities wherever they are in the world. The Convention Rights protect everyone, alien or citizen, who is within the jurisdiction of the United Kingdom. Those who are detained by british authorities anywhere in the world are undoubtedly within the United Kingdoms jurisdiction. Article 5 of the convention therefore applies, not only must there be good grounds for retaining them but the existence of grounds must be approved before an independent impartial tribunal established by law. It would have been a little bit more complicated. But aliens are undoubtedly able to apply for habeas corpus. Just as a slave did in 1772 and was freed. The test of whether the writ will run against the british authorities is is whether they have sufficient control of the person detained. I rather hesitate to mention this. But our court recently held that that test was satisfied in the case of a pakistani man detained by the british authorities in iraq but handed over to the american authorities who then transferred him to babylon in breach of the memorandum of understanding which had been made between our two countries. And we held that we could therefore issue the writ of habeas corpus to the British Government get them to ask the u. S. Government to do something about it. Two of us were not satisfied with the return that the British Government came to the writ, but thats another story. Should we have taken the americans word for it that there was nothing they could do. The point is habeas corpus would undoubtedly have run detaining an alien of british on foreign territory. These are the sorts of case in which magna carta is mentioned that more is value underpinning later laws than a surviving rule of law in itself. But id like to end by telling you about one case which we have had in which magna carta might actually have made the difference. This concerns the sorry tale of diego garcia. Diego garcia is the largest island in the archipelago in the indian ocean. In the 1960s, the United Kingdom and the United States negotiated to make the islands available to the United States for a military base on diego garcia. For this purpose it was necessary both to receiver the islands on mauritius. Who knows whether they would stay aligned with the western powers or whether they would become not aligned. And to remove the local population. By an ordering council under the role of prerogative, the British Government created a separate colony known as the British Indian ocean territory. Biot. But in 1971, when the United States wanted to move in, the commissioner of the biot made an immigration ordinance which prohibited anyone from entering or remaining on the territory without a permit. And of course no permits were given to the indigenous population. This was part of a legal facade constructed by the British Government to deny there was any population on the islands for fear their obligations towards a nonselfgoverning territory under article 73 under the charter would be used to prevent the construction of the base on diego garcia. The local population were moved out, mainly to the mauritius and the seychelles with callous disregard. All of this is known and accepted by the British Government. Many years later one of the islanders, mr. Banku, brought judicial review proceedings in england to quash the immigration ordinance on the ground that the commissioners power to legislate slate for the peace, order, and Good Government of the territory did not include a power to expel all the inhabitants contrary to their best interests. In 2001, this claim succeeded. The orders were quashed. And the government at that time decided to accept this decision and investigate the feasibility of the island as returning to the outer islands. In 2004, however, the government decided that it would be impossible to promote or even permit resettlement to take place. Accordingly, they made a new Constitution Order and new immigration order prohibiting it. They didnt mention that this is precipitated by a plan by some of the islanders and their supporters to stage landings on the islands, which were seen as a Security Threat to the diego garcia base. So mr. Banku brought a new order to quash the new orders. And he succeeded in the high court and in the court of appeal but failed in the house of lords by a majority of 32. Among the many arguments deployed on behalf of the islanders was one based on chapter 29 of magna carta. No free man shall be exiled but for the lawful judgment of his peers or by the law of the land. It was accepted that parliament might pass a law exiling a person from his homeland, but it was argued that an ordering council in the exercise of the law and the colonies could not do so. Three of the lords disposed of this argument by holding that the orders were the law of the land for the purpose of chapter 29. Thus, holding that all means all. Two of the law lords held that there was no prerogative power so to legislate to exit a population from its homeland. Magna carta and the later developments of its principles by blaxton and lord mansfield lay at the heart of their reasoning. I was not a member of the panel that heard that case. I wonder which way i would have decided it. I wonder which way the Supreme Court of the United States would have decided it. Whatever the answer, it seems clear to me that the values which underpinned the magna cartas of 1215 and 1225 are as important in todays world as they were then and much in need of protection in our courts. Thank you. [ applause ]. Thank you, lady hill for those spirited, interesting, illuminating and entertaining remarks on this fundamental document to rule of law in the United States and the United Kingdom. And we look forward to seeing the remarks printed in upcoming journal in the journal of Supreme Court history. I also want to acknowledge justi justi Justice Ginsberg and thank her for her attendance this afternoon. One of the things that the lady mentioned thanks to dorothy goldman, our Vice President who has perhaps the largest collection of constitutions in the world on display outside the gift shop this afternoon, coincidentally its outside the gift shop which is open, you will find a 1556 printing of magna carta on the second row down on the left. Its a very small book. Its very interesting. In english with latin as well. So you can test and see how well you would have been able to understand this one. Now, for those of you taking the tour of the court, you can remain. The tour will begin at 3 00 p. M. For the trustees, we have a Board Meeting at 6 00 p. M. This evening. And for those of you with reservations, we have a reception at 7 00 p. M. And a dinner at 8 00 p. M. Thank you all for attending this afternoon and, lady hill, thank you very much. [ applause ]. With congress on its summer recess, each day at 6 00 p. M. Eastern the cspan cities tour will visit literary and historic sights across the nation. This is our second day in madison, wisconsin where well look at the literary life of the state capital. Thats at 6 00 p. M. Eastern on our xan yoen network cspan. You can see the cities tour every other weekend all year long on cspan 2s book tv and American History tv on cspan3. On no 6th, a new magna carta displayed in washington. King john originally signed the document under pressure from his barons in england. American revolutionaries looked to the rights guaranteed by the mag that carta as they rebelled gengs the enlish crown. Princess ann was present at the opening ceremony. This program runs about 45 minutes. Good morning, ladies and gentlemen. Im james billington, the 13th librarian of congress. Its a great pleasure to welcome you all to the library of
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