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“Freeborn John” turned against Cromwell’s army junto of “tyrants, weasels and polecats” and was duly prosecuted — twice — for treason. His juries played the part ascribed to them in legal mythology, as “the lamp that shows that freedom lives”.  They acquitted Lilburne, after he had addressed them for three days, from Coke’s Institutes, about the rights of freeborn Englishmen. Some years later, an Old Bailey jury refused a judge’s direction to convict the Quakers Penn and Mead, despite being locked up without food or fire or bed or chamber pot.

Anglo-American veneration of the right to jury trial dates from this time, and it is the most notable “British” right that is entirely absent from the Convention. The reason is simple: that Convention was drawn up as a “lowest common denominator” statement and juries had ceased to exist in Europe, where Napoleon had long ago abolished them. In consequence, we have no protection against a government which might decide to abolish jury trial in certain classes of serious crime, and it is surely time that we did.

The need for a Bill of Rights to protect against executive power was accepted here a century before the Declarations of the French and American Revolutions, in the 1689 Bill of Rights. It is still in force, and it contains the first reference to free speech, namely:

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

It had another useful and unique provision:

That excessive bail ought not to be required, no excessive fines imposed, nor cruel and unusual punishment inflicted.

This ban on “cruel and unusual punishment” later found its way into the US Bill of Rights and then into international human rights conventions, as a rule against torture. It provides a good example of how felicitous phrases in Bills of Rights can come to be reimagined to meet the values of later generations. (It was originally inserted as a protest against the punishment of Titus Oates, a clergyman who had been defrocked and whipped for perjury against Catholics.)

Any “British” Bill must incorporate iconic moments in Scottish history — the Declaration of Arbroath (1320), for example, which asserted independence from the English crown; and the Claim of Right (1689), which paralleled the English Bill of Rights of the same year, and the Criminal Procedure Act of 1701 which set strict limits to detention.

We spool forward a century to the revolutionary declarations of “The Rights of Man” in America and France. They were based on “natural rights” theories that never took root here, thanks to ridicule by Edmund Burke and Jeremy Bentham (“Nonsense on stilts”) and Karl Marx (“Bourgeois rights”). Instead, 19th century Britain gave the shining example of a practical “right” — not to be held in slavery — enforced by the Royal Navy up and down the coasts of East and West Africa. Bentham and John Stuart Mill gave meaning to the idea of liberty, and extended it to social rights, especially the right to free secular education. In due course the suffragettes demanded women’s rights, and later still came the right to free healthcare (the NHS) and the realisation of Magna Carta’s promise (“to no man will we deny justice”) with a comprehensive legal aid scheme.

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July 16th, 2015
8:07 AM
Ummm, SOVEREIGNTY, Geoffrey?

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