Modernizing Magna Carta

Legend has it that after he was forced to agree to the Magna Carta in 1215, King John of England threw himself on the floor in a rage, crawling around and biting on a stick like a dog. There were good reasons for such a show of temper. The document imposed on him by rebellious barons and bishops in a meadow called Runnymede was one of the first comprehensive written attempts to limit the powers of the English King and to set forth the rights of his subjects. Lord Bryce, the historian, has described it as "the starting point in the constitutional history of the English race." In The History of English Law, Frederick Pollock and Frederic William Maitland go even further. Magna Carta, they write, is "the nearest approach to an irrepealable 'fundamental statute' that England has ever had."

Yet now the British are preparing to remove from the nation's statute books most of what remains of the great charter. Under a proposed statute repeal bill, some 200 British laws that are "no longer of practical utility" are likely to be scrapped soon by Parliament, including one "prohibiting common night walkers in the universities." More significant, all but two of the remaining twelve provisions of Magna Carta are also to be struck from the books.

Root of Due Process. Over the centuries, the charter has been reissued in at least three slightly varying versions, and some of its archaic features have already been dropped. One provided: "No one shall be arrested or imprisoned on the appeal of a woman for the death of any person except her husband." Another proclaimed: "If anyone who has borrowed a sum of money from Jews dies before the debt has been repaid, his heir shall pay no interest on the debt for so long as he remains under age." The legislation introduced in Parliament will repeal ten other clauses that have either gone unenforced in recent years or have been superseded by new laws. Among them is one that ordered the removal of all weirs (dams) from the Thames and other rivers, and a second that restricts the King's right to seize the lands of debtors. The provision assuring that "the Church of England shall be free" will be eliminated because that institution, which was then responsible to Rome, long ago became a state, or "established" church.

Of the two articles unaffected by the bill, one prevents the King from revoking certain powers and privileges of local governments. The other article is regarded as Magna Carta's most important legacy, for it sets forth the seminal notions that a man has a right to a speedy trial and may not be deprived of his rights without due process of law: "To no one will we [the King] sell, to no one deny or delay right or justice. 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."

A Lot of Junk. When Britain's Lord High Chancellor explained the statute repeal bill to the House of Lords last month, the scene was characteristically somnolent, with at least five peers asleep on their scarlet benches and a couple of others halfheartedly straining to hear the proceedings with old-fashioned black ear trumpets. But when the Lord Chancellor, Lord Gardiner, described the proposal as "a start towards getting rid of a lot of junk," his words rang like alarm bells. Leaping to his feet, Lord Leatherland cried: "I should hate historians of the future to say that Lord Gardiner was the man who said that Magna Carta was junk." The Lord Chancellor was appropriately chastened. Rising from his comfortable woolsack, he said: "I withdraw the word junk." There is no thought, however, of withdrawing the repeal proposal.

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