Hausarbeit zum Thema:

Compare of Bill of Rights and Magna Charta

Contents
1 Magna Charta..........................................................................................................................2 1.1 Historical circumstances ................................................................................................3 1.2 Magna Charta 1215 - Judicial rights..............................................................................4 2 Bill of Rights 1689..................................................................................................................6 2.1 Historical circumstances.................................................................................................6 2.2 An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown ..........................................................................................................................7 3 Parallels ................................................................................................................................10 3.1 Clauses concerning freedom ........................................................................................10 3.2 Religious clauses...........................................................................................................10 3.3 Judiciary........................................................................................................................11 References...............................................................................................................................15

1 Magna Charta
Magna Charta is often regarded as the nearest equivalent to a written constitution which the English possess. It is held in esteem as a statement of individual liberties which are beyond the interference of the state. It is synonymous with responsible governement and equitable justice. So deeply rooted is this belief in the Charter that neither modern critical examination of the original document nor the removal of all but four of its clauses from the statute-book has seriously weakened its hold over the popular imagination. Indeed, Magna Charta is a firmly established part of our national heritage. Pallister (1971)

Magna Charta is the greatest constitutional document of all times in English speaking world the foundation of the freedom of the individual against the arbitrary authority of the despot. It established the principle that no one, including the king or a lawmaker, is above the law. Abuses by King John caused a revolt by nobles who compelled him to execute this recognition of rights for both noblemen and ordinary Englishmen. The barons who opposed King John called for the restoration of the liberties enjoyed under Edward the Confessor and Henry I. They looked back to idealized past in which men enjoyed all their rights and liberties and where government was according to law. Therefore, they demanded a return to this good and ancient practice. By enumerating ancient rights in the Charter, the barons were attempting to place permanent limitations upon the power of the crown in future, and by 1237, when Henry III. confirmed the liberties contained in the Charter in perpetuity, they had been successful; they had converted their interpretation of custom into undisputed law. From this time, Magna Charta was regarded as fundamental and inalienable law, limiting upon and superior to the crown, and its repeated confirmations in the thirtheenth and fourtheenth centuries further enhanced its position as higher law. In the fifteenth and sixteenth centuries the Charter declined in importance, but it was revived in a striking fashion in the early seventeenth century. Led by Sir Edward Coke, he re-instated it as a document of political importance in the seventeenth centuriy. There are four originals of the Great Charter from 1215, two at the British Museum, one at Lincoln Cathedral and one at Salisbury Cathedral. The original copies are written in latin. The one Magna Carta we know today is not the 1215 charter but a later charter of 1225 issued by King Johns son King Henry III., and is usually shown in the form of The Charter of 1297 when it was confirmed by Edward I. Each king for the next two hundred years (until Henry V in 1416) personally confirmed the 1225 charter in his own charter. It should not be thought of as one document but rather a variety of documents coming together to form one Magna Carta, in the same way as the treaties of Rome and Nice (among others) come together to form the treaties of the European Union and the European Community. The name Magna Charta (latin name stands for Great Charter, literally "Great Paper") derives not from the importance of the

act but because of its size. The Magna Charta from 1215 contains more specific clauses and grievances rather than general priniciples of law. 1.1 Historical circumstances

In twelfth century, England had no constitution. There was no general system of government in which powers were balanced, functions alloted and defined, rights protected, and principles stated or acknowledged. The society accepted privileges as a part of the natural order of things. Magna Charta has been preserved as a part of the common law a law developed through customs and court and tribunal decisions - of England. The common law is law refind by judges. If there is no authoritative statement of the law, judges have the authority and duty to make law by creating precedent.There was nothing particularly striking or extraordinary in the fact that King John hat to end a period of disastrous wars in 1215 with the grant of liberties to his subjects. Magna Charta reflected English conditions, just as Golden Bull of Hungary or a pragmatic sanction did . The Magna Charta 1215, sealed by King John of England, is a promise to the subjects of the kind which declares that he will rule England and handle with the vassals according to the customs of the feudal law. Magna Carta was the first document forced onto an English King by a group of his subjects (the barons) in an attempt to limit his powers by law and protect their privileges. It was preceded by the 1100 Charter of Liberties in which King Henry I voluntarily stated what his own powers were under the law. Magna Charta is the compendium of long-established customs- it enunciates principles of responsible governement an equitable justice which have been claimed, if not practised, longer than the Charter itself has been in existence, and it states these principles as the ancient and undoubted heritage of the English people. Some of the clauses are still valid under the charter of 1297 issued by Edward, but with a few minor amendments, e. g. the prohibition of fish-weirs (still helps to preserve navigation on the Thames and other rivers). Some clauses survived because they were harmless confirmations of rights and privileges conveyed by other instruments. Hence, the Charter still declares that the English church shall be free and still confirms (this clause may be brought because King Johns dispute with pope Innocent over Stephen Langton's election as archbishop of Canterbury), but does not define, the privileges of the city of London and other towns and boroughs.
1. In the first place we grant to God and confirm by this our present charter for ourselves and our heirs in perpetuity that the English Church is to be free and to have all its rights fully and its liberties entirely. We furthermore grant and give to all the freemen of our realm for ourselves and our heirs in perpetuity the liberties written below to have and to hold to them and their heirs from us and our heirs in perpetuity.

9. The city of London is to have all its ancient liberties and customs. Moreover we wish and grant that all other cities and boroughs and vills and the barons of the Cinque Ports and all ports are to have all their liberties and free customs. 29. No Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.

But most of the surviving clauses state deeper principles and less restricted privileges. At the other extreme from the fish-weirs of cap. 23 there stands cap. 29, which lays down that no free man is to be imprisoned, dispossessed, outlawed, exiled or damaged without lawful judgement of his peers or by the law of the land. The document is also honoured in America, where it is an antecedent of the United States Constitution and Bill of Rights. 1.2 Magna Charta 1215 - Judicial rights

Clauses 17 to 22 allowed for a fixed law court, which became the chancellery, and defines the scope and frequency of county assizes. They also state that fines should be proportionate to the offence, that they should not be influenced by ecclesiastical property in clergy trials, and that their peers should try people. Clause 24 states that crown officials (such as sheriffs) may not try a crime in place of a judge. Clause 34 forbids repossession without a writ precipe. Clauses 36 to 38 state that writs for loss of life or limb are to be free, that someone may use reasonable force to secure their own land, and that no one can be tried on their own testimony alone.
36. Nothing shall be paid or taken in future for a writ of inquisition of life or limbs. Instead, it shall be given free of charge, and not denied. 37. If a man holds Crown land by fee-farm, by socage, or by burgage, and also holds land of another lord for knights service, we will not have (by reason of that fee-farm, socage, or burgage) the wardship of his heir or of such land he holds of the other lords fief . Nor shall we have wardship of that feefarm, socage, or burgage, unless the fee-farm owes knights service. We will not have the wardship of a mans heir, nor of land that the man holds through knights service to someone else, because of any small serjeanty that he may hold from the Crown for the service of providing to us knives, arrows, or the like. 38. In future, no bailiff shall place a man on trial upon his own unsupported words, without credible witnesses being produced to support his word.

Clauses 36, 38, 39 and 40 collectively define the right of Habeas Corpus. Clause 36 requires courts to make inquiries as to the whereabouts of a prisoner, and to do so without charging

any fee. Clause 38 requires more than the mere word of an official, before any person could be put on trial.
39. No freeman shall be arrested or imprisoned or disseised or outlawed or exiled or in any other way harmed. Nor will we [the king] proceed against him, or send others to do so, except according to the lawful sentence of his peers and according to the Common Law.[3] return to the index on the 'Magna Carta, 1215 - English translation' page 40. To no one will we sell, to no one will we refuse or delay, right or justice. 41. All merchants may leave or enter England in safety and security. They may stay and travel throughout England by road or by water, free from all illegal tolls, in order to buy and sell according to the ancient and rightful customs. This is except, in time of war, those merchants who are from the land at war with us. And if such merchants are found in our land at the beginning of the war, they shall be detained, without injury to their bodies or goods, until information is received by us (or by our chief justiciar) about in what way are treated our merchants, thence found in the land at war with us . If our men are safe there, the others shall be safe in our land. 42. It shall be lawful in future for any one, keeping loyalty to the Crown, to leave our kingdom and to return safely and securely, by land and by water. This is except in time of war, when men may go, only in the public interest, for some short period. (This excludes, always, those imprisoned or outlawed in accordance with the law of the realm, natives of any country at war with us, and merchants, who shall be treated as previously stated).

The first time a clause of Magna Carta was repealed, was the repeal of clause 26 in 1829. In the following 150 years nearly the whole charter was repealed, leaving just Clauses 1, 9, and 29 still in force after 1969. Most of it was repealed in England and Wales by the Statute Law Revision Act 1863, and in Ireland by the Statute Law (Ireland) Revision Act 1872.

2 Bill of Rights 1689

In 1215, nearly 600 years before the drafting of the Bill of Rights, King John of signed the Magna Carta, a document designed to protect the English people from the Crowns abuse of power. The Bill of Rights is a summary of rights that are considered important and essential by a nation. The Bill of Rights combined past grievances against the deposed king with a more general statement of basic liberties. The statute prohibited the monarch from suspending laws or levying taxes or customs duties without Parliament's consent and prohibited the raising and maintaining of a standing army during peacetime. More importantly, it proclaimed fundamental liberties, including freedom of elections, freedom of debate in Parliament, and freedom from excessive bail and from cruel and unusual punishments. To prevent a recurrence of the religious divisions that beset the Catholic James in ruling a largely Protestant England, the Bill of Rights also barred Roman Catholics from the throne. The Bill of Rights is a fundamental bill of parliamentarism. The Bill of Rights became one of the cornerstones of the unwritten English constitution. The Bill of Rights has also had a significant impact on U.S. law, with many of its provisions becoming part of the U.S. Constitution and Bill of Rights. 2.1 Historical circumstances

After Charles II death, his brother James, the Duke of York succeeded to the throne in 1685. Since James II converted to Catholicism in 1669, many feared a papist as king a Catholic king. After facing rebellion James II eliminated his greatest enemies in a cruel way. He also tried to promote Catholicism by assigning Catholics to military, political and academic posts. In 1687, he issued a Declaration of Indulgence aiming at complete religious toleration and instructed Anglican clergy to read it from their pulpits. Later the parliament declined an order and was dismissed. For a short time James II ruled solely without parliament. The situation became serious when James Italian wife Mary of Modena gave birth to a son. This was the beginning of the end of Catholic succession to the English throne. James II had two Protestant daughters from his first marriage with Anne Hyde - Mary and Anne. The older Mary was married to her cousin William III of Orange son of William II of Orange and Mary the daughter of Charles I. Protestant opponents of James II invited secretly Princess Mary and Prince William III of Orange to England in order to obtain the throne. After Prince William landed with his army in Devon supported by the most nobility and parliament, James II had to flee without fight to Catholic France. The fight for the English throne was not finished yet. In the following year James raised an army and tried to regain the throne. At the 6

Battle of Boyne in July 1690 he was unsuccessful. James died in exile in 1701. In meanwhile in 1689, the English parliament formally offered William and Mary the throne as joint monarchs. They accepted a 'Declaration of Rights' (later 'Bill of Rights') which outlined grievances against James, limited the power of the monarchy and affirmed important rights relating to the powers of parliament.

2.2

An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown

William and Mary were lawful sovereigns; that the succession should pass to the heirs of Mary, then to her sister Princess Anne (later Queen Anne) and her heirs; and that no Roman Catholic could ever be sovereign of England. This act was rather important later in 1714 when Queen Anne, last Stuart ruler, died without heir. The German Protestant Prince George, Elector of Hanover and his heir were chosen to succeed the English throne which from now on was ruling over Great Britain. The Bill of Rights confirms that:
And whereas it hath been found by experience that it is inconsistent with the safety and welfare of this Protestant kingdom to be governed by a popish prince, or by any king or queen marrying a papist , the said Lords Spiritual and Temporal and Commons do further pray that it may be enacted, that all and every person and persons that is, are or shall be reconciled to or shall hold communion with the see or Church of Rome, or shall profess the popish religion, or shall marry a papist, shall be excluded and be for ever incapable to inherit, possess or enjoy the crown and government of this realm and Ireland and the dominions thereunto belonging or any part of the same, or to have, use or exercise any regal power, authority or jurisdiction within the same; and in all and every such case or cases the people of these realms shall be and are hereby absolved of their allegiance; and the said crown and government shall from time to time descend to and be enjoyed by such person or persons being Protestants as should have inherited and enjoyed the same in case the said person or persons so reconciled, holding communion or professing or

The Bill of Rights gave political supremacy to Parliament and was supplemented (1701) by the Act of Settlement, which settles the succession to the English throne and Commonwealth realms. This fundamental document of British constitutional law differed substantially in form and intent from the United States Bill of Rights because it was intended to address the rights of citizens as represented by Parliament against the Crown.

After dethroning James II in 1688, William III and Mary II accepted the Declaration of Rights as a condition for ascending the throne. They confirmed via the Bill of Rights that some acts of James II were illegal and therefore prohibited.
Whereas the late King James the Second, by the assistance of divers evil counsellors, judges and ministers employed by him, did endeavour to subvert and extirpate the Protestant religion and the laws and liberties of this kingdom.

These deviations affected following chapters:

By assuming and exercising a power of dispensing with and suspending of laws and the execution of laws without consent of Parliament; By committing and prosecuting divers worthy prelates for humbly petitioning to be excused from concurring to the said assumed power; By issuing and causing to be executed a commission under the great seal for erecting a court called the Court of Commissioners for Ecclesiastical Causes; By levying money for and to the use of the Crown by pretence of prerogative for other time and in other manner than the same was granted by Parliament; By raising and keeping a standing army within this kingdom in time of peace without consent of Parliament, and quartering soldiers contrary to law; By causing several good subjects being Protestants to be disarmed at the same time when papists were both armed and employed contrary to law; By violating the freedom of election of members to serve in Parliament; By prosecutions in the Court of King's Bench for matters and causes cognizable only in Parliament, and by divers other arbitrary and illegal courses;

William and Mary, prince and princess of Orange, before ascending the throne, had to assure that they would protect their subjects and would not violate the rights of the people like James II. did. William and Mary declared their ancient rights and liberties: the right of petition
That it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal;

an independent judiciary (the Sovereign was forbidden to establish his own courts or to act as a judge himself

That the commission for erecting the late Court of Commissioners for Ecclesiastical Causes, and all other commissions and courts of like nature, are illegal and pernicious;

freedom from taxation by royal (executive) prerogative, without agreement by Parliament (legislators),
That levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal;

freedom from a peace-time standing army

That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law;

freedom (for Protestants) to bear arms for their defence, as allowed by law,
That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;

freedom to elect members of Parliament without interference from the Sovereign,

That election of members of Parliament ought to be free; That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal; That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal;

freedom of speech in Parliament,

That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament;

freedom from cruel and unusual punishments and excessive bail, and
That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted;

freedom from fines and forfeitures without trial.

That all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void;

3 Parallels
Some parallels between Magna Charta and the Bill of Rights of 1689 can be found. In the first place, these documents are fundamental documents of British constitutional law. These two acts limited the power of the monarchy and affirmed important rights relating to the powers of parliament or in case of Magna Charta nobles and barons. Both acts protected and still protect certain rights of the King's subjects as it is confirmed. 3.1 Clauses concerning freedom

The article 29 came to be embodied in the Bill of Rights of state after the state and was carried on from the eigtheenth to the twentienth century. It was no longer as much a law as a statement of political principle. The Charter only survived alongside natural law bybeeing raised to the same universal terms. Art. 29 had become a convenient formulation of a natural right.
29. No Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.

The Bill of Rights is a conformation of the rights which partly Magna Charta assures.
That it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal;

3.2

Religious clauses

Magna Charta 1215 mentions the Jews:

10. If one who has borrowed from the Jews any sum, great or small, dies before that loan can be repaid, his heir shall pay no interest on the debt for so long as he remains under age, irrespective from whom he holds his lands. If such a debt falls into our hands, we will take nothing except the principal. 11. And if any one die indebted to the Jews, his wife shall have her dower and pay nothing of that debt; and if any children of the deceased are left underage, necessaries shall be provided for them in keeping with the holding of the deceased. The debt shall be paid out of the residue , save the service due to feudal lords. Let debts due to others than Jews be dealt with in similar manner.

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Magna Charta confirmes the liberties and rights of the English Church.
1. In the first place we have conceded to God, and by this our present charter confirmed for us and our heirs for ever that the English church shall be free, and shall have her rights entire, and her liberties inviolate; and we wish that it be thus observed. This is apparent from the fact that we, of our pure and unconstrained will, did grant the freedom of elections, which is reckoned most important and very essential to the English church, and did by our charter confirm and did obtain the ratification of the same from our lord, Pope Innocent III., before the quarrel arose between us and our barons. This freedom we will observe, and our will is that it be observed in good faith by our heirs for ever.

In Bill of Rights, William III and Mary II defined England as a Protestant kingdom:
And whereas it hath been found by experience that it is inconsistent with the safety and welfare of this Protestant kingdom to be governed by a popish prince, or by any king or queen marrying a papist,

The Bill of Rights states that the Catholic King James II violeted the rights of Protestants:
By causing several good subjects being Protestants to be disarmed at the same time when papists were both armed and employed contrary to law;

William III and Mary II had to assure that:

... the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;

3.3

Judiciary

Magna Charta contains following cap. concerning judiciary.

17. Common pleas shall not follow our court about, but shall be held in some fixed place. 18. Inquests of novel disseisin, mort dancestor, and darrein presentiment shall only be held in their own county courts, in the following manner. We or, should we be out of the kingdom, our chief justice will send two justices to each county four times a year who, along with four knights of each county chosen by that county, shall hold the assize in the county, and on the day and in the meeting place of the county court. 19. If any of the said assizes cannot be held on the day of the county court, let there remain as many of the knights and freeholders, who were present at the county court on that day, as are necessary for the efficient making of judgments, according to whether the business is more or less 24. No sheriff, constable, coroner, or other royal bailiff, shall hold lawsuits meant be held by the royal justices.

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38. In future, no bailiff shall place a man on trial upon his own unsupported words, without credible witnesses being produced to support his word. 40. To no one will we sell, to no one will we refuse or delay, right or justice.

The Bill of Rights says:

And illegal and cruel punishments inflicted;

That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal;

That the commission for erecting the late Court of Commissioners for Ecclesiastical Causes, and all other commissions and courts of like nature, are illegal and pernicious;

That it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal;

That jurors ought to be duly impanelled and returned, and jurors which pass upon men in trials for high treason ought to be freeholders;

In Order to prove his loyality to his people, King John gave to his subjects garanties; he declares:
And if we, or in our absence abroad the chief justice, have not corrected the transgression within forty days, reckoned from the day on which the offence was declared to us (or to the chief justice if we are out of the realm), the four barons mentioned before shall refer the matter to the rest of the twenty-five barons. Together with the community of the whole land, they shall then distrain and distress us in every way possible, namely by seizing castles, lands, possessions and in any other they can (saving only our own person and those of the queen and our children), until redress has been obtain in their opinion. And when amends have been made, they shall obey us as before.

Prince William and Princess Mary from Orange declared ancient rights and liberties to their subjects:

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And whereas the said late King James the Second having abdicated the government and the throne being thereby vacant, his Highness the prince of Orange (whom it hath pleased Almighty God to make the glorious instrument of delivering this kingdom from popery and arbitrary power) did (by the advice of the Lords Spiritual and Temporal and divers principal persons of the Commons) cause letters to be written to the Lords Spiritual and Temporal being Protestants, and other letters to the several counties, cities, universities, boroughs and cinque ports, for the choosing of such persons to represent them as were of right to be sent to Parliament, to meet and sit at Westminster upon the two and twentieth day of January in this year one thousand six hundred eighty and eight, in order to such an establishment as that their religion, laws and liberties might not again be in danger of being subverted, upon which letters elections having been accordingly made;

Prince William swore following oath:

I, A.B., do swear that I do from my heart abhor, detest and abjure as impious and heretical this damnable doctrine and position, that princes excommunicated or deprived by the Pope or any authority of the see of Rome may be deposed or murdered by their subjects or any other whatsoever. And I do declare that no foreign prince, person, prelate, state or potentate hath or ought to have any jurisdiction, power, superiority, pre-eminence or authority, ecclesiastical or spiritual, within this realm. So help me God.

... Now in pursuance of the premises the said Lords Spiritual and Temporal and Commons in Parliament assembled, for the ratifying, confirming and establishing the said declaration and the articles, clauses, matters and things therein contained by the force of law made in due form by authority of Parliament, do pray that it may be declared and enacted that all and singular the rights and liberties asserted and claimed in the said declaration are the true, ancient and indubitable rights and liberties of the people of this kingdom, and so shall be esteemed, allowed, adjudged, deemed and taken to be;...

Differences between Magna Charta and the Bill of Rights: The Bill of Rights consists of some norms which regulate the rights of the parliament, since in Magna Charta times no parliament existed; those kind of norms are absent. Another difference is concerning religous norms. In times of Magna Charta the Roman Catholic Church was the state religion. Since Henry VIII invited the Church of England and broke up with Roman Catholic Church, all of the monarchs which ruled over England (except for Mary I and James II) were Protestants. By introducing the Test Act in 1673 which excludes Catholics from public office and the Act of Settlement, passed in 1701, which excludes Catholics from succeeding the English throne the Catholics lost a lot of influence. 13

It is rather interesting that the Magna Charta passed in 1215, declares the freedom of the English church. It seems that the independence of the English church has deep roots.
In the first place we have conceded to God, and by this our present charter confirmed for us and our heirs for ever that the English church shall be free, and shall have her rights entire, and her liberties inviolate; and we wish that it be thus observed. This is apparent from the fact that we, of our pure and unconstrained will, did grant the freedom of elections, which is reckoned most important and very essential to the English church, and did by our charter confirm and did obtain the ratification of the same from our lord, Pope Innocent III., before the quarrel arose between us and our barons. This freedom we will observe, and our will is that it be observed in good faith by our heirs for ever.

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References

Holt, J.C. 1965. Magna Charta. Cambridge: Cambridge University Press Kurtovi, efko. 1999. Hrestomatija Ope povijesti prava i drave/I. knjiga/Stari i srednji vijek. Zagreb: Pravni fakultet Kurtovi, efko. 2000. Hrestomatija Ope povijesti prava i drave/II. knjiga/Novi vijek . Zagreb: Pravni fakultet Rutland, Robert Allen. 1955. The Birth of the Bill of Rights 1776 -1791. Institute of Early American History and Culture. The University of North Carolina Press Chapel Hill Pallister, Anne. 1971. Magna Charta. The heritage of liberty. Oxford: At the Clarendon Press http://www.magnacartaplus.org/magnacarta/ [ seen on 09/02/2009] www.bbc.uk.co/history [seen on 02.03.2009] http://en.wikipedia.org/wiki/Magna_Carta [seen on 02.03.2009]

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