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tv   Discussion on the Magna Cartas Legal Heritage  CSPAN  July 5, 2015 1:11pm-2:01pm EDT

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ed that is saying, well, babies are difficult and it will not be that awesome, but one wonders when it is actually awesome to have children. i will leave you with that question. i will see you next week. have a good weekend and be good. goodbye, folks. [captions copyright national cable satellite corp. 2015] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit] >> you are watching "american history tv," all weekend, every weekend on c-span3. to join the conversation, like us on facebook. >> coming up next, the supreme court historical society hosts brenda hale for a commemorative lecture on the 800th anniversary of the magna carta. justice hale explains how the magna carta influenced the legal histories of both the u.k. and the united states.
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this program is 50 minutes. >> today's lecture will be on the magna carta. a document of great historical significance to the rule of law. the 800th anniversary of which will be two weeks from today. and we are honored and privileged to have as our lecturer, the deputy president of the supreme court of the united kingdom, the right honorable baroness hale of richmond. let me describe a bit the historical feats that lady hale has herself accomplished. ----she was the only member of -- she was the woman. she was only member of the u.k. supreme court to be a woman. she was the first and only woman in 1999 was the -- when she was appointed to the court of appeals. in 1994, she was the first high court judge to come from a
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background as an academic and a public servant rather than as a practicing banister, although she had been called to the bar in 1969 and 1989. when she practiced law briefly in manchester, she decided that the ratio, one of six women in her class, she was the only member of that class, man or women, to get an exceptional distinction. she became an academic at manchester university, specializing in family law. wrote a series of books on family law, including casebooks on parental responsibility and mental health, and a book on women and the law in 1984 has been described as a groundbreaking analysis of the way gender inequality was codified in british law. in 1984, she became the first woman appointed to the law commission, which is a lot
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reform body, and was instrumental in that capacity in the passage of the children's act of 1989, described as the single most important piece of legislation for the protection of minors in the united kingdom. she was also instrumental in the family act of -- and the mental health act of 2005, it protected mentally handicapped people from participating in certain situations and protecting them and others. she had a distinguished career throughout her life. this lecture is, herself, -- we could have a lecture about her biography, but that is not the case today. we are externally honored and privileged to have the right honorable baroness hale. your honor. >> [applause]
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justice hale: thank you very much indeed for that introduction. very flattering, and quite undeserved. and for the invitation. it is wonderful to be here in this courtroom. to be able to talk about magna carta, yes, magna carta, not the magna cart. our shared heritage. both our supreme courts are surrounded by reminders of magna carta. the great doors into these buildings are a bronze belief of king john. an original of the document -- when entering your museum of the national archives before going upstairs to see the declaration of independence, the constitution, and the bill of rights. above the doors leading into the building, which now houses the
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supreme court of the united kingdom, there is a stone relief of king john granting the document. engraved on the class door this evening, at the entrance hall, into our library, is a facsimile of the 1225 charter, with its most famous guarantee highlighted, "to no one will we deny or delay right or justice." those words from a chapter 14 of the original charter, together with the original chapter 39, "no free man should be arrested or imprisoned, or deceived or outlawed or exiled or in any way victimized neither will we attack him or send anyone to attack them -- him except by the lawful judgment of his peers or by the law of the land." those words still have the power to make the blood race. as the greatest judge in britain of this century had said. that is lord bingham.
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they are embodiments of the right to life, liberty, and property, not to be infringed without due process of law still to be found on the book of the united kingdom and the fifth and 14th amendments to the constitution of the u.s. my own blood raced too a few weeks ago. just after last parliament had been dissolved when i received my own summons. sealed with a privy seal, giving me exactly 40 days notice of a certain parliament to be held in westminster. harking back, i felt short to -- shore of the chapter 14 of the original magna carta. "and to obtain the common council of the kingdom, and aid, we will call us to be summoned, the bishop, abbots, and greater barons, and in addition we will call to be summoned generally, through our sheriffs and bayless, all those holding chief
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for a fixed date, when that -- expires and at least 40 days and to a fixed 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 -- from whom the taxes are levied should have a voice in what they should be. now, usually in baldy in the slogan, no taxation without representation which i understand has a special significance in the district of columbia. >> [laughter] justice hale: as i also understand it, it was that which lost us the american colonies. >> [laughter] justice hale: i want, therefore to protect myself. as a member of the house of lords, i do not have a vote in the house of commons. i got my own summons before the election decided who those members were to be.
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since the law left the house of lords to become the 16th court of the united kingdom in 2009, neither do i have the right to sit or both on any parliamentary business in the house of lords. so i am doubly disenfranchised. perhaps i should go to stratford to protect along with the prisoners and others who don't have the vote in my country. another of my favorite provisions in the original charter is chapter 45. "we will not make justices constables, sheriffs, or bailiffs." this is but one of the many embodiments in the charter. of the third idea which 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 a one-way traffic.
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the law, which only the government have to obey. the government have to obey it too. indeed, by chapter 60 of the original charter, the customs and liberties which the king had granted to our men, which meant, my men, the barons, had also to observe towards their men. they cascaded down through the feudal 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 life -- 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 the debate whether "and" means "and" or "and" means "all." >> [laughter] justice hale: the idea that government rests upon the consent of government and that
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the government is bound by the law. no wonder lawyers get so excited by it. all three ideas begs the question of where the law comes from and who makes it. but i will come back to. -- that. historians, at least in my country, tend not to be so excited about the magna carta, 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 content was simply reaffirming principles of feudal law, and above all, its most radical provisions were soon dropped. but while the story of how the barons succeeded is quite exciting. the story of what happened next is even more exciting. only a few days after the charter was sealed on the 15th of june, king john asked the pope to release him from his both -- oath to observe him.
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only 24th of august, the pope obliged. king john felt guilty to the pope, and the pope wrote him something in return. he denounced the charter as distorted by "such violence and fear as might affect the most courageous of men." he forbade king john to keep his oath and he declared the charter "null and void of all validity forever." he might've thought that that was that. the result was civil war between the barons who extorted the charger and the king and those who were loyal to him. it looked as if the barons were going to lose until they persuaded the son of the king of france, prince louis, to whom they had already offered at the crown, to invade. the french were in a lot of trouble in my country. >> [laughter] justice hale: and this he did
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in may 2016. louis laid claim to the throne. by election by the baron remarkable, but true. and by elections by the barons remarkable, by true. but he didn't promise to abide by the charter. by october, it looked as though john was heading towards defeat. he headed towards the wash, a large, shallow bay in the east of england. and he was crossing it in order to reinforce his garrison at lincoln council, one of the few holding out for the king. john made it across the wash but most of his baggage did not and sank. he stumbled onto newark, but died there on the 18th of october. thus, as recorded in a book called "1066 and all that," which is known -- which is advertised to comprise all of the parts of english history
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"which you can remember." >> [laughter] justice hale: which is mostly wrong. "john finally demonstrated his incompetence by losing the crown and all his clothes in the wash." >> [laughter] justice hale: and then dying of peaches and no cider. thus, his awful rain -- reign came to an end. his body was confined to purchaser abby for burial. his heir, his nine-year-old son, henry the third. but william marshall, the greatest warrior of the day and the king's most loyal servant, quickly took charge. with the support of the people legate, he arranged for henry's coronation in boston. the court travel to bristol which was then the second city
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in the kingdom. i myself am pleased to know that because i am chancellor of bristol. so i have a star connection with that city. in bristol, the king was advised to be issue -- reissue magna carta. this was sealed by marshall and the cardinal, because the boy-king had no seal of his own. this, the magna carta of 1216, which was also reissued in 1217, made the basis of the magna carta of 1225. which king henry granted when he had acquired a great deal of his own. those are the ones that really matter. the 1216 charter was very different from the one exacted by the barons. one might call it a typical english compromise. designed to read all the barons of the legal rights they cared about most, were preserved, but
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also to preserve the spaces of the monarchy and rights of the people. most importantly, they didn't contain the original chapter 61 given to 25 barons to be chosen by the runnymede rebels to enforce the provisions of the charter against the king and his officials. known as a security clause. these powers acknowledged the indignation of the pope. some of the other chapters which king john had promised to put right particular grievances were dropped because they were deemed specific to the political situation in 1215. other chapters were disguised in -- described in the 1216 charter as important, yet doubtful. isn't that a clever phrase? they were "to be deferred until we have a fuller counsel, when -- then we will most fully, indeed as well as other matters that have to be amended, do what
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is for the common good and the peace in the state of ourselves and our kingdom." and among these, were the chapters dealing with the levying of aid and scootage, including my favorite chapter 14 about summoning the common council. but, of qwest, the principle of no taxation without consent, came back in other ways. it was because of the exclusion that the famous chapters 39 and 40 of the 1215 charter were combined to form chapter 29 of the 1216 and all subsequent charters, including the charter of 1297, which was involved on -- enrolled on the english statute book. making laws that have emerged in the 13th century. in granting the 1297 charter, it -- edward the first did no more than " the 1235 charter than his
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father, henry the third." you know this because there was one of those 1297 charters in your national archives. and of course, you can read it can't you? despite the writing isn't in latin. they had three significant changes. 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 the grant and gift of these liberties, the archbishops, and bishops barons, knights, freeholders and all of our realm has given us a 15th part." pay tax. no longer a product of coercion, it was never the less a contract with the people. liberty and boulevard in return
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-- the rule of law in return for the taxes the kings needed to maintain his paid and wage his wars. henry the third was still around in 1225 to reissue the charter largely due to william marshall, his regent, the best night in -- knight in all the world. he defended the french army at the battle of lincoln. and the french fleet was defeated in kent. prince louis renounced his claim to the english throne and promised to never assist the rebels again. the rebels were pardoned. they were still excommunicated but that didn't matter quite as much. as having their land restored to them. as a historian puts it, "magna carta was revolutionary. the idea of monarchy with -- was shaken to its foundation.
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the republican challenge was real. " so, let's fast for now to the 17th century. so, let's passport to the 17th century. the century of the english revolution and the century of the english colonization of america. be assured they had not entirely forgotten about the principles underlying the magna carta in intervening years. magna carta was on the statute book. putting chapter 29 into development had been developed. magna carta was first printed in latin in 1508 and in english in 1534. i believe you have on show downstairs a copy of one of the early english printings of mensa
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court -- of magna carta, which is a wonderful thing to be able to see. also attributed to glanville of braxton, all of the laws and customs of england. glanville written in 1190 had said, what has pleased the prince is force of law, but braxton writing about 1250 had said instead what ever have to spend rightly decided and approved with the council of the magnate and the general agreement of the community has the force of law. he explained, the king ought not to be subject to man, but subject to god and the law. lawyers may also be familiar with the trees of sir john fortis q -- fortis q -- fortesc
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ue, when he said the king cannot change or alter the laws of his realm at his pleasure. but magna carta as such was not on the lawyer's minds until it was resurrected and given almost mythical power by cert -- sir edward cooke appointed by same -- king james i, just as the prerogative power of the king was developing nicely along with a battle between the king and parliament. those ideas -- that there should be no taxation without common consent, and that there are limits to the royal prerogatives -- the great charter of the liberties of england was referred to in the rights
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drafted in the house of commons of which he was -- as kings did in those days, with unpopular decisions, presented to the house of lords, and reluctantly and equivocally given the royal agreement by charles i in exchange for the taxes he needed to raise. eventually everyone in my country ought to know -- the king tried to roll that parliament. there was a civil war 20 loyalists, also known as -- between the loyalists, also known as the cavaliers, and the romantics and the proletarians -- parliamentarians come also called the roundheads, and as
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repulsive. [laughter] the king was put on trial for treason and executed in 1649. the calls for the adjournment of these trials were met by "the good words in the great old charter of england," and this is what they meant. what his conqueror alloliver cromwell was not a great respecter of civil liberties. that is according to clarendon a history of the rebellion. whether this is an accurate quotes we cannot say, because he was not a great fan of cromwell. the monarchy was restored in 1660 but once again became precarious as king james ii reassessed his powers.
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william of orange, married to james wrote daughter mary, was invited to invade. the king alone could not make law or suspend or dispense operations of the laws which parliament had made. the bill of rights also prohibited excessive bail and cruel and unusual punishment but it was primarily about parliament and not individuals. while these things were going on in the old country, the english where establishing their american colonies on the other side of the atlantic. they took the common law and magna carta with them. the royal charter granted to the colony of virginia, partly the work of cooke and asserted
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english colonists would enjoy the same rights that the english enjoyed in the homeland. some colonies and deborah to -- endeavored to create their own magna carta structures. except this also refers to the word of god, which was not featured particularly prominently in the early versions. william penn is credited with the first american printing of the great charter and using it in forming the rules of pennsylvania. he had first hand experience of the battlefields of england before he came over to found the colony. it motivated the declaration of independence in 1776 and the framing of the new constitution in 1787. but you will know much better
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than i the answer to that question, but it seems to me 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 will have needed something more. the lawyers would have known everything about's this -- who in 1789 and had disentangle the different medieval versions. they would have known about civil liberties in 18th-century britain. the colonists said no vote in the parliament -- had no vote in the parliament which was now sovereign. when that parliament voted to impose direct taxes upon them without representation, they could cite magna carta when they declare their independence. on the other hand, important
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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. 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 legislature. for the framers it was the people, not parliament, still less the king and parliament, that were sovereign and invested the constitution they adopted with this authority. they believed it was necessary to enshrined or freedoms in the bill of rights to protect the majority. much of its content is an echo of the rights in the magna carta . did its motivation come not so much from the appeal to ancient history, but from the appeal to
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nature and reason? from the puritan covenant between god and his people and john locke's. natural rights? you will know more about that than i do. there is an awful lot of writing about it. 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 of the sort that the citizens of the united states of america would recognize. eleanor roosevelt describe this as an international magna carta for all men everywhere. impatient for the lot of progress by the united nations in translating aspirations into binding obligations and international law, the council
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adopted a similar set of european rights in the convention on human rights and making 50. -- of 1950. there is a remarkable resemblance to magna carta. once the united kingdom and other member states except of the rights of individuals to petition the court against the run government -- many of the seminal cases which have established fundamental doctrines came from the 90 kingdom -- the united kingdom. the complacency of english warriors embodied rights the english had enjoyed for centuries. eventually, our sovereign parliament divided that these rights should become rights and enforceable in united kingdom
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courts. it is still not a proper bill of rights in the american cents or indeed the sense of any of the many other written constitutions in the world. all we can do, so far as it is possible, we can interpret a provision so it is not incompatible. there is an amazing amount you can do with interpretation. [laughter] baroness hale: i won't give you any examples now, but there is a lot we can do. or we can make a declaration of incompatibility. parliament has three choices. first, it can swiftly approve a remedial ordering counsel. dealing with simple cases. second, it can have an act of
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parliament to deal with the incompatibility. or it can do nothing and risk the wrath of the council of europe. so far, all of the declarations of incompatibility has been acted upon by the united kingdom, so most of the time it works. the one exception is they have not yet brought themselves to amend the so-called blanket ban on prisoners voting in elections. when they do that, can they pass on those lords who cannot vote and cannot play any part in the house of lords. not only that, but parliament -- what parliament has granted knowing can take away. the conservative party manifesto before the recent general election promise to introduce a
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british bill of rights. this will make the 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. [laughter] baroness hale: however, in the speech from the new parliament last week, the new government promised only to bring forward proposals on a british bill of rights, so we shall have to wait to see what they contain. they give the tools to positively protect the human rights, but it has also made us think rather harder about the content of fundamental rights in the common law and wonder whether we too have a concept of statute that is different from all of the other acts of parliament. all of this is taking place against the backdrop of the atrocities of 9/11 and later
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international development, which have brought new challenges. we tend to think that the american courts are far more conscious of magna carta them we are. stephenson 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 10 years. as far as we can discover, it is being referred to in judgment of only 24 cases before the house of lords the judicial committee, and the supreme court but -- but those are in the last 10 years. does this indicate a renewed interest in the values and embodies? in 2003 in the court of appeals, lord justice lorde held that
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there was a category that cannot be appealed or modified by an act of parliament. and last year, the supreme court questioned whether one constitution statute could entirely modify another. the case was a challenge to the government decision against planning with the necessary compulsory powers between london -- and apparently it is not going down very well in scotland. anyway they would grant -- they would gain these powers in the form of a bill before parliament. the challenge of parliamentary scrutiny would be inadequate to comply with the requirement of the european directive on
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environmental assessments, to which, of course, we are bound. until the case got to be supreme court, no one had taken the position that the parliamentary process would be contrary to the article nine, which says that the proceedings of argument will not be impeached or questioned in any place other parliament. our president in a joint judgment with which to rest of us all agreed referred to a number of constitutional instruments including magna carta, the petition of rights, 1620 eight, and the bill of rights 1689 and continued -- it is certainly arguable that there may be -- whether it is contained in other constitutional instruments or constitutional law, that they
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may not contemplate or authorize the abrogation. this is heady stuff. that those of us who are brought up to believe that parliament can make or unmake any law. it follows well short -- it falls well short of constitutional entrenchment. not only that, our courts have become more vigorous in applying the principle of legality. so, any parliamentarian would understand what was at stake and be prepared to take the political risk in a agreeing with you. fundamental rights are not to be overridden by general or ambiguous words. it means, i think, that three of the earlier cases in which magna carta was mentioned, the rights
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have been decided differently today. in this case during the first world war, a majority of the house decided that the broad in enabling powers in the defense of the realm act permitted regulations to be made that authorize the interment of persons with "hostile origins or associations." lord shaw disagrees. the most famous provision of magna carta itself could not be abrogated in this way. hee hee scorn on the majority view. -- he keeps score onn on the majority view. it all rests in the power of the executive to issue regulations. then again what during the second
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world war, the secretary from affairs they found it was within the home secretary for power to authorize detention when he had reasonable cause to believe that there was a reason. it does not mean he has to have reasonable cause, only that he thought that he did. they rejected that the rights had to be narrowly improved. interestingly in his famous defense, lord atkins did not refer to magna carta at all. he regard this -- he regarded this the view taken by the majority was humpty dumpty. [laughter] baroness hale: he says, when i use a word i use words to mean
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what i wanted to mean, no more no less. the question is, humpty dumpty which is to be master? you can do a lot with the meaning of words. given his reluctance to rely on magna carta had something to do with the protestation of the british units affected. these days, well i believe we would share his view of the words themselves, we would also take the view that any legislation interfering with the liberty of the subject to be too prescriptive and crude. and the deprivation of liberty and times of war contrast with the view taken of the deprivation of property. [indiscernible] and the more famous attorney
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general, they tried to find that the power to requisition property had not deprived of the right to compensation. and they opined that at least since my mccart of the crown has had no power to confiscate power for his own benefit. these days, we have to judge those places not only against the principles of common law, but also the human rights act. even such derogation has to be justified. thus, we held that the power given to the executive shortly after the atrocities of 9/11 to detain certain suspected foreign terrorists indefinitely was unjustifiably discriminatory
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against foreigners. if there is a real need for such a measure, we have plenty of homegrown terrorists have our own who needed it, too. i like to think that with or without the human rights act we would have reached the same opinion of your supreme court in the most famous of the nine recent cases in which magna carta has been cited. under the human rights act it would be easy. the convention rights protect everyone alien or citizen, within the jurisdiction of the united kingdom. they are undoubtedly within the united kingdom. not only must there be good grounds for detaining them, but those grounds must be proved before an impartial tribunal
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established by law. without the human rights act, it can be a little more complicated. aliens are undyed -- undoubtedly entitled to apply for a be a scope -- habeas corpus. the test is whether they have sufficient control of the person detained. rather hope they think dimensionally but our court recently held that that case was satisfied in the case of a pakistani man detained by british authorities in iraq, but handed over to american authorities. we held that we could therefore issue the writ of habeas corpus to the british government to get them to ask the u.s. government to do something about it.
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should we have taken the americans' word for it? the point is habeas corpus undoubtedly would have run against these aliens on british territory. these are the sorts of cases in which magna carta is mentioned but more as a value underpinning later law than a surviving rule of law in itself. but i would like to end by telling you about one case in which magna carta might actually have made a difference. this concerns the story of diego garcia. give garcia is the largest island in an archipelago in the indian ocean. the islands were dependent on
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malicious, which was seated to britain by the french in 1814. britain and the united states negotiated to make the islands available to the united states for a military base. for this purpose it was necessary to sever the islands from their dependence on mauritius, and who knows if they would become independent and stay allied with the western powers, and to remove the population. so, the british government created a separate colony known as the british indian ocean territory. biot. in 1971, when the united states when a move-in, the commissioner prohibited anyone from entering or remaining on the territory
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without a permit and of course no permits were given to the indigenous population. this was part of a legal façade constructed by the british government to deny that there was any indigenous population of the islands, fearing that article 23 of the united nations charter would forbid the construction of the base on diego garcia. the indigenous population was moved out with a "callous disregard of their interest." all of this is known and accepted by the british government. one of the islands investigators brought judicial review proceedings in england on the grounds that the commissioners had the power to legislate did not have the power to expel the inhabitants for their best
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interests. this succeeded. and the government decided to except this position. then the government decided it would be impossible to permit resettling to take place. they did not mention that this was precipitated by a plan by some of the islanders and supporters two-stage landings on the island that was seen as a security threat to the diego cars they are -- jiggle garcia base. so, the was another proceeding. -- two diego garcia base. so, there was another proceeding. he failed in the house of lords by a majority of 3-2.
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"no free man may be exiled but by the lawful judgment of his peers with 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 counsel could not do so. three of the lord's disposed of this by holding that the orders were "the law of the land." thus holding that all means the law. two of the lord said that there was no prerogative power. magna carta, the latest developments of its principles, lay at the heart of the reasoning.
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i was not a member of the panel that heard that case. i wonder which way i would have decided. [laughter] baroness hale: i wonder which way the supreme court of the united states would have decided it. whatever the answer, it seems clear to me the values which underpin the magna carta in 1215 and 1255 are as important in today's world as they were then, and as much in need of protection in our courts. thank you. [applause] >> thank you, lady hale, for
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those spirited and entertaining remarks on rule of law in the night is eighth in the night the kingdom -- in the united states and the united kingdom and we look forward to seeing those marks in the forthcoming journal of supreme court history. i also want to acknowledge justice ginsburg and thank her for her attendance. thanks to dorothy goldman, we have possibly the largest collection of constitutions on display outside the gift shop. coincidentally it is outside the gift shop which is open. you will find a 1556 printing of magna carta on the second row down on the left. it's very small book and it's very interesting. you can test and see how well you could understand this one. for those of you taking the tour


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