Posts in Magna Carta
Words Worth Noting - March 27, 2024

“The first thing worth noting is that the drafters of the Charter titled this first section ‘Guarantee of Rights and Freedoms.’ In other words, the intended purpose of the opening section is to underline that the rights and freedoms laid out in the Charter are guaranteed. But, if you look at almost every judgement that wrestles with this section, talk to almost any lawyer, or consult most government websites, they instead call the section ‘The Limitations Clause’ or ‘The Reasonable Limits Clause.’ That is a very different focus! And that betrays the problem: the legal culture in Canada has focused on the phrase ‘reasonable limits’ instead of ‘guarantees the rights and freedoms.’ That changes the analysis before we even start.”

André Schutten and Michael Wagner, A Christian Citizenship Guide 2nd edition

Words Worth Noting - March 13, 2024

“One man, John Hampton, refused to pay [the “ship money”], and his case went to court. The question was how far the king’s ‘discretionary power to act for the common good’ extended. The lawyer for Mr. Hampton argued that ‘If the king alone was the judge of whether an emergency existed, and also the sole judge of the scope of his prerogative in that situation, then no English subject had any rights.’ But the king said, in effect, ‘I get to say if there’s an emergency, I get to say what is necessary to address the emergency, and I get to keep secret how I act and spend during the emergency. And no one gets to challenge or question my prerogative.’ Sir Edward Crawley, the king’s lawyer, argued that ‘necessity, as assessed by the king, was always superior to the law of the land.’ How did the court respond? Lord Justice Berkley, writing for a majority of the court, said that if Mr. Hampton’s arguments were accepted, the result would be a ‘king-yoking policy.’ He then declared he ‘never heard that lex was rex but rather the reverse, for the king was lex loquens, a living, speaking, acting law.’ As legal historian Ryan Alford notes, following the Court’s logic in this case, ‘Parliament could never bind the king, since he could operate above the statutes whenever he declared an emergency, even in peacetime. On this logic, [the king] was not even bound by Magna Carta.’ Parliament was furious.”

André Schutten and Michael Wagner, A Christian Citizenship Guide 2nd edition