Slightly O/T — Monday “History Of The Law”: The Great Seal And Writ Turns 800 Today

To be sure, the bulk of the Magna Carta is about preserving the property rights of the nobles, then at odds with the Crown. Even so, you need not join U. of C. law professor Tom Ginsburg in vilifying the Writ. Why? Because more than any proclamation or coherent set of ideas before — especially at Sections 38 through 40, and 44 to 45, of that aged sheet of vellum — are the beginnings of our nation — ruled by, and of laws — not men. In sum, Tom is simply. . . wrong.1

From those three to five sections (quoted below, in blue) comes eventually the right to trial by an impartial jury of peers, the right to confront ones’ accusers in open court and. . . most importantly, what we now call “due process of law” — what the English called then a “right of justice“. [Prior to Magna Carta, it was something the Crown could sell, and then refuse to enforce, at its whim. But today, that same Crown will celebrate this 800th birthday.]

. . . .No bailiff for the future shall, upon his own unsupported complaint, put anyone to his “law”, without credible witnesses brought for this purposes. . . .

No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land. . . .

To no one will we sell, to no one will we refuse or delay, right or justice. . . .

Men who dwell without the forest need not henceforth come before our justiciaries of the forest upon a general summons, unless they are in plea, or sureties of one or more, who are attached for the forest. . . .

We will appoint as justices, constables, sheriffs, or bailiffs only such as know the law of the realm and mean to observe it well. . . .

So — despite all her flaws (including perniciously singling out “the Jews” for onerous treatment), the grander ideas embedded in Magna Carta — and carried to the New World, via her ancient DNA, flow through to the birth this nation’s rights and privileges, down to this very day. Without these starts at the lofty ideas of Magna Carta, there would have been no Bill of Rights, no Civil Rights Act of 1964, and no Voting Rights Act of 1965, as just three examples. Onward — and. . . now, go Hawks!

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1. Tom also points out that women couldn’t testify in certain trials, under the writ. What that fails to acknowledge, is that women COULD, after the writ, at least testify in trials about the death of their husbands. Prior thereto, there was no guarantee that any woman’s word would be accepted into evidence at trial — in any matter. So, yes — the law was flawed, and primitive in 1200. But this was a halting step. . . forward. Under Section 8, a woman could not be thrown off the land simply because her husband had died — and she would not be required to remarry, in order to keep their lands. That too was a step forward. So, I think Tom is wrong to vilify Magna Carta, with his benefit of hindsight.

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