Excavations


... nothing is more essential to public interest than the preservation of public liberty.

- David Hume



Tuesday, June 10, 2014

The Magna Carta of 1215 - and Article 61. Building the case for clause consciousness

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.
[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.

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