What is the
Magna Carta? And what is its significance?
In order to answer these two questions we must also raise the question:
which Magna Carta are we talking about?
Only then can we begin to understand Article 61.
The Magna
Carta (today considered by some to be more ‘long’ than it was ‘great’) was a
legal and constitutional document signed by King John of England on 15 June,
1215, nearly 800 years ago. He was compelled
to do so by the English barons who were likely following the example of the
Coronation Charter of Henry I, signed in 1100.
But as signatories go, King John (not unlike King Henry I) may have had
no intention of keeping to his Charter; the King complained to Pope Innocent
III that he signed under duress, who absolved him of any legal obligations in a
Papal Bull of 24 August, 1215. Baronial
rebellion continued.
As luck
would have it, King John died in 1216, and the throne was handed over to his
nine-year-old son, King Henry III. The
Magna Carta was reissued in 1216, but article 61 was missing. It was reissued in 1217 – again article 61
was missing. Finally, when King Henry
III was an adult a 1225 version was reissued, along with The Charter of the Forest,
which dealt with articles 44, 47 and 48 (forest law) also deleted after 1215.[1] The so-called final version of the Magna
Carta is the 1225 version, again missing article 61, but upheld by law and
Parliament. This 1225 version of the
Magna Carta was always combined with the Charter of the Forest[2],
and it is these two documents that are touring Canada (or at least some parts
of the country) in 2015.
So what is
this mysterious Article 61, and why are Canadians not able to view it in
original text and Latin form? Article 61
is very long - here it is translated in part, as it would be in 1215:
And if we do not correct the
transgression, or if we are out of the kingdom, if our justiciar does not
correct it, within forty days, reckoning from the time it was brought to our notice
or to that of our justiciar if we were out of the kingdom, the aforesaid four
barons shall refer that case to the rest of the twenty-five barons and those
twenty five barons together with the community of the whole land shall distrain
and distress us in every way they can, namely, by seizing castles, lands,
possessions, and in such other ways that they can, saving our person and the
persons of the queen and our children, until, in their opinion, amends have
been made; and when amends have been made, they shall obey us as they did
before.[3]
If there is
a royal transgression of the Charter, then twenty-five barons considered as a
whole (one of which is the Lord Mayor of London) has the right to exercise
coercion. In his Constitutional History of England (1880) William Stubbs sums up
article 61 succinctly and in admiring tones:
The enforcement of the Charter is
committed to twenty five barons, to be chosen from the whole baronage. These are empowered to levy war against the
king himself, if he reuse to do justice on any claim laid before him by four of
their number, and in conjunction with the communa – the
community of the whole realm – to distrain him, saving his royal person and
queen and children.[4]
In other
words, Article 61 incarnates the right of the community to compel the King to
obey the law; his will was no longer considered absolute. And it meant the loss
of royal prestige. In other words, space was evacuated for the development of
Parliament, or are we reading history backwards too much? A generation after
Stubbs, Pollock and Maitland in their History
of English Law (1895) describe the Magna Carta as a “treaty extorted.”[5] Note the 'cool' tone: “Even in the most famous words of the charter we may detect a feudal claim
which will only cease to be dangerous, when in course of time men have
distorted its meaning – a man is entitled to the judgement of his peers.”[6] But Pollock and Maitland’s point remains: the
king is “below” the law.
Is it
possible that the Magna Carta and the legacy of Article 61 are ‘distorted’
by history? After the death of King John it was never reissued in any form. Article 61 certainly plays a significant role
in America political culture, particularly in relation to the Declaration of
Independence. The American historian George Burton Adams, claims Article 61 to
be the most significant entry in the Magna Carta, perhaps for good reason. He
argues that because of the Norman Conquest English feudalism was more fully idealized
than its French counterpart (thereby reversing the positions of Stubbs and
Maitland). In other words, the Magna
Carta functioned on feudal principles of an ideal reciprocity. And as he
explains in The Origin of the English
Constitution (1912) “the king’s action was bound and limited … the
community possessed the right to coerce him.”[7]
Simply put: Article 61 is essential because it defines the notion of a limited
monarchy.
The Magna
Carta is marked modestly on the occasion of its 700th anniversary by
an English paper in 1915, when Britain was at war (fighting another form
of tyranny), only to be united in a larger published volume in 1917, when the
United States entered the war. The Magna
Carta, in particular Article 39 and its implied notion of “due process”,[8]
is also seen as the precedent to the American Bill of Rights, the twin to
Article 61 and the Declaration of Independence.
The resulting work, Magna Carta
Commemoration Essays, is both an official from of medieval memory and joint
war effort, strong in its sense of “constitutional liberty” spread across the
English-speaking world.[9]
However if
we look to the 750th anniversary of the Magna Carta in 1965, the distinguished
British medieval historian J.C. Holt (recently deceased in April 2014) understates
the document of 1215. His revised
edition of 1992 begins: “In 1215 Magna Carta was a failure. It was intended as peace and it provoked
war.”[10] Here he overturns the whiggish Stubbs who
observed in the Magna Carta a certain “treaty character.”[11]
While Holt’s book is complex, deeply historical and essential reading, one
cannot resist the impression that his thinking was formed, in some part, in
youth as a witness to Neville Chamberlain speaking to enthusiastic crowds of
“peace for our time”.
Today as we
near the 800th anniversary of the Magna Carta a charitable
organization – not the Ministry of Heritage - is bringing the document to
Canada on a tour in 2015, but there is no mention of Article 61. Prime Minister Stephen Harper (who, it is
assumed, knows economics – certainly not law) could not have it any
better. Not only is there no historical
discussion about compelling a “King”
to place himself “below” the law, taxpayers are not on the hook for their own
political education, which in Harper’s Canada can be a good thing.
There are
four copies of the Magna Carta of 1215 in existence, all in England: two with
the British Library, which never travel, one with Salisbury Cathedral, and
another with Lincoln Cathedral. The
Lincoln Magna Carta has toured the world somewhat, and it was on display in
Australia in 1988. The Australian
Parliament even owns a 1297 version of the Magna Carta, which is on permanent
display in Canberra.[12] By comparison with Australian efforts, the
role that Canada’s Parliament plays in educating the public about the Magna
Carta is pitiful.
Pollock and
Maitland maintain that the Magna Carta is “full of future law.” [13] Legal figures have played a large role in
maintaining its importance, in particular Sir Edward Coke (1552-1634) who
revived it in time for the constitutional struggles of the seventeenth century
with the 1628 Petition of Right
(which restricted Charles I) and the introduction of Habeas Corpus. While Coke
was busy recasting seventeenth-century English law in light of the thirteenth
century, he was looking at the 1225 issue of the Magna Carta – not the original
1215 version.[14] It was not until 1759, more than a century after
King Charles lost his head, that the two versions, 1215 and 1225, were actually
distinguished. In other words, in the
aftermath of civil war England was able to “coerce” its King without the aid of
the Magna Carta of 1215. Imagine what Coke would have made of the Magna Carta (and
the Petition of Right) if he had seen
the original 1215 version! George Adams,
aided by Stubbs, resolve this issue by pointing out that the “feudal” Article
61 was succeeded by the constitutional “machinery” of the Provisions of Oxford
(1258), a document from the period of the “Mad” Parliament fettering King Henry
III, which (if we look to the example of Simon de Montfort who foreshadowed a
free Parliament) compares somewhat with the struggles of the English seventeenth
century.[15]
Discontinuities
and continuities aside, the current Canadian tour of the Magna Carta speaks of
many implied future laws, for example trial by jury and consent to taxation and
women’s rights, but it misses any discussion of the coercive article 61, which
is integral to the history of the English constitution. Consider this a brief essay in historical
revisionism.
[1] See
the discussion by Katherine Fischer Drew, Magna Carta (Westport, Connecticut:
Greenwood Press, 2004), p. 139.
[2] Ibid.
[3] Ibid., , pp.137,138.
[4] William
Stubbs, The Constitutional History of
England in its origin and development, Vol 1 (Oxford: Clarendon Press,
1880) [Gale Making of the Modern Law Print Edition], p. 605. For a fine discussion of Stubbs, see J.W.
Burrow, A Liberal Descent: Victorian
Historians and the English Past (Cambridge: Cambridge University Press,
1983), pp. 126-151.
[5] Frederick
Pollock and Frederic William Maitland, The
History of English law before the time of Edward I, Vol. I (Cambridge: Cambridge University Press, 1895)
[Gale Making of Modern Law Print Edition], p. 150.
[6] Ibid. ,p. 151.
[7]
Burton Adams Adams, The Origin of the
English Constitution (New Haven, Yale University Press, 1912) [Gale Making
of Modern Law Print Edition], p. 251.
[8] No free man shall be arrested or imprisoned
or disseised or outlawed or exiled or in any way victimized, neither will we attack
him or send anyone to attack him, except by the lawful judgement of his peers
or by the law of the land. Source: Drew, Magna Carta, p. 134.
[9]
See Stefan Goebel, The Great War and
Medieval Memory: War, Remembrance and Medievalism in Britain and Germany,
1914-1940. Cambridge: Cambridge University Press, 2009. An interesting and very fertile book: the
author misses any discussion of the 700th anniversary of the Magna
Carta. He also misses any discussion of
Tolkien. For an interesting discussion
of “The Influence of Magna Carta on American constitutional development” see H.D.
Hazeltine in Henry Elliot Malden, Magna
Carta Commemoration Essays (London: Royal Historical Society, 1917)[Bibliolife],
pp. 180-226, esp. p. 206. See also the
address by McKechnie – a lawyer - on the occasion of the 700th
anniversary in Malden, Magna Carta,
pp. 1-25.
[10] J.C.
Holt, Magna Carta, Second ed.
(Cambridge: Cambridge University Press, 2003),p. 1.
[11]
Stubbs, Constitutional History, Vol.
I, p. 595.
[12]See
the Magna Carta Canada Blog “Where is Magna Carta Today?” (April 27,2014) by
Carolyn Harris
http://www.magnacartacanada.ca/883/ viewed 10 June 2014.
http://www.magnacartacanada.ca/883/ viewed 10 June 2014.
[13]
Pollock and Maitland, History of English
Law, Vol. I, p. 150.
[14]
Holt, Magna Carta, p. 20.
[15]
Both Adams (1912) and Stubbs (1880) refer to the “machinery” of The Provisions
of Oxford.
