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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
End of Slideshow
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