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 700^th 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 750^th 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 800^th 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. 

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[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 700^th 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 700^th 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.

Mandarin Immersion?

Thanks to Premier Christy Clark’s non-adhesion to two decisions by the B.C. Supreme Court, the Coquitlam District school board has cut millions of dollars from this year’s budget and millions again from last year’s budget.  The impact on the school system is huge, and deleterious: increased class sizes, no job security for teachers with 10 years’ experience, Special Education Assistants are spread thinner and thinner, librarians are gone, no cafeterias in Middle Schools, and buses slashed (adding to greenhouse gases).

But has anyone at the School Board thought about cutting Mandarin Immersion from the public purse? As a Canadian I find Mandarin Immersion in Coquitlam rather odd.  Once the dialect of northern China, Mandarin is now the official language of the People’s Republic of China, and Taiwan, where everyone is expected to speak it.  Mandarin is also the native language of maybe 250,000 immigrants spread across Canada today, approximately 30,000 of whom are of Taiwanese origin. In 2011 Statistics Canada reported 94,000 Mandarin-speaking individuals in B.C., or 2.2% of the population, so that is hardly enough to justify public immersion classes in Coquitlam.

Yes, the Canadian Charter of Rights and Freedoms guarantees the right to “instruction in minority language educational facilities provided out of public funds”.  But the Charter implies that only minority language parents have rights for their own children “where numbers warrant”.  Are we talking about “minority language educational rights,” as per the Constitution, or are we talking about opportunity for instruction in an “official” language that is neither English nor French?  I suspect the latter.

Because the number of Mandarin-speaking immigrants has not reached any sort of ‘critical mass’, we can see that the decision to bring about these immersion classes was based on factors not protected by the Constitution. Most students in these immersion classes likely come from outside of Mandarin-speaking immigrant families, yet the public is footing the bill for nearly exclusive, other-Chinese or Asian communities to learn Mandarin as a second, or possibly third language. The decision to have Canadian taxpayers fund Mandarin immersion in British Columbia takes a block of parents off the hook for funding the education of their own offspring, aided as they are by the Confucius Institute, which quietly peddles China’s soft power.

But wait!  China is going to be the premier world economic superpower, I hear, which is the real reason behind Mandarin Immersion.  We need to understand language and culture better in order to do business with the Chinese state and economy, which wields greater and greater influence. The philosopher Karl Popper, in his classic The Open Society and its Enemies (1945) describes this kind of argument politely as moral futurism because it “takes sides with the powers that will be, with the rulers of tomorrow”.  One finds many moral futurists in different parts of Canada who do not realize that their logic tends to undermine what it means to be Canadian.

Yes, language is important, so is cultural heritage, and immigration. And the ability to speak a number of languages fluently is admirable and pressingly urgent, but the case for Mandarin Immersion violates the spirit of the Canadian Charter while at the public’s expense.  Given the scarcity of resources in Coquitlam’s school district, perhaps it’s time to give Mandarin Immersion a serious re-think.

Magna Carta Canada: some preliminary thoughts

Did you know that the Magna Carta is coming to Canada in 2015?  Yes, a non-profit organization known as Magna Carta Canada (not Canada’s Ministry of Heritage) is funding a tour (by donation!) of the Great Charter across Canada: Ottawa’s Parliament buildings, Toronto’s Fort York, Winnipeg’s Museum of Human Rights and Alberta’s Legislature in Edmonton. But not British Columbia.

The Magna Carta, signed June 15, 1215, when King John was forced by his English Barons, espouses clear notions of constitutional liberty and the idea that “no one is above the law”. The Great Charter is at the root of the origins of the English constitution, the Canadian constitution, 51 other member states of the Commonwealth, and the U.S. Constitution.  We are not talking about John Lennon’s tooth here. And it is a considerable failure of the “Harper government” that the Great Charter does not travel across more of Canada on the occasion of its 8^th centenary anniversary.

We can blame Harper’s chief lieutenant in B.C., former “Heritage” Minister, James Moore, who of course is also responsible for stabbing CBC in the back, commercializing Radio 2, and setting the network up for a series of massive cutbacks.  This is the same MP who now as Minister of Industry used public funds to pick fights with the Big Three cellphone companies only to concede defeat because he realized that he cannot brainwash all Canadians – or find another rival to the Canadian companies. Quite the legacy.

If so-called parliamentarians such as James Moore and Stephen Harper truly had the public interest at heart all Canadians would have a chance to see the Magna Carta.  However, one wonders what kind of spin the government would place on the reception of the Great Charter if the Ministry of Heritage were directly involved. As we all know, parliament ain’t what it used to be. Neither is Canada.  Cynical political calculation now reigns supreme, where everyone is considered an enemy (even the Chief Justice of the Supreme Court). It’s Harper who needs King John's lessons from the Magna Carta, but our beloved Prime Minister is not only hiding from his responsibility to world heritage, he is hiding from us.

Canada's Supreme Court Message to Harper on Senate "Reform"

You can fool part of the people some of the time, you can fool some of the people all the time, but you cannot fool all the people all the time.

                                                Adage attributed to Lincoln, 1886[1]

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[1] It appears that the original precursor to Lincoln’s alleged (and unproven) remarks was Jacques Abbadie, a French Huguenot, who wrote in 1684: “One can fool some men, or can fool some men in some places and times, but no one can fool all men in all places and ages.”  http://quoteinvestigator.com/2013/12/11/cannot-fool/

Trinity Western University: Public and Private Inversions

Fact: In the wake of the Great Recession (in what might have been an Augustinian - or "Bible Bill" - moment following the sack of Rome), the “Harper Government” gave over $20 million of federal public money from its “Economic Action Plan” to evangelical teaching institutions across Canada.[1]

Fact:  $2.6 million was given to Trinity Western University (TWU) in 2009, a private Christian university in Langley, B.C.  The source of money was the so-called Knowledge Infrastructure Program.

Fact: TWU’s trove of public money was announced by the Conservative MP for Langley, Mark Warawa, himself a graduate of TWU, who did not see any conflict of interest.

Fact: Education is considered a provincial responsibility, and our public colleges and universities are underfunded.

Fact: No one at TWU complained of a crisis of conscience in light of the violation of Canada’s federal finances.

Fact: TWU now has a Law School, set to start in 2016, but the university prohibits what some people do in their bedrooms.

Fact:  What was public was given to the private, and what is private will now interfere with the public - all in the name of religious freedom.

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[1] See Marci McDonald, The Armageddon Factor: The Rise of Christian Nationalism in Canada (Toronto: Vintage, 2011), p. 245.   See also http://www.cbc.ca/news/politics/christian-schools-received-20m-from-infrastructure-fund-1.1329280

Flanagan's "Game Theory and Canadian Politics"

The blueprint for today’s Conservative Party can be found in Tom Flanagan’s work Game Theory and Canadian Politics (1998).  The discovery that Harper’s erstwhile mentor has written a book on Game Theory - not a very interesting one, mind you (a selective read is recommended) - makes the evidence of the proverbial smoking gun become clear. Game Theory explains the so-called Fair Elections Act.

This blog first broached Game Theory in my review of Lawrence Martin’s Harperland, and I returned to the matter more philosophically with my discussion of “Harper and Hobbes”. Rather than repeat myself excessively I invite the reader to consult the aforementioned entries, but allow me to point out that Game Theory began  in 1944 with the publication of The Theory of Games and Economic Behaviour, the joint work of John von Neumann (a mathematical genius) and Oskar Morgenstern (an economist).  It was also later developed by Princeton’s John Nash (“A Beautiful Mind”), for which he won a Nobel Prize.

Stephen Harper would have encountered Game Theory in his study of economics, and this fact has been missed by his many observers – and critics.  Game Theory is also rooted in the philosophy of Thomas Hobbes, particularly his Leviathan (1651), published in the wake of England’s Puritan Revolution – and the execution of King Charles I in 1649.  Central to both Hobbes and Game Theory is what Flanagan describes as its “Methodological Individualism” which is inherent in “Rational Choice”: “… rational choice is sceptical about speaking of vague aggregates such as ‘society’ or ‘the nation’ because such terms are often used to disguise very real differences among the people who make up the collectivity.”[1]  Game theory argues from the premise of “rational actors seeking to maximize their own self interest”[2] (two questionable assumptions, indeed), and Flanagan twists himself into knots (indicating shallow imagination) over the altruism of Mother Teresa.

According to Game Theory there is essentially nothing but rational self-interest, a rather paranoid vision of the world, which helps to explain Harper’s penchant for secrecy (and John Nash’s bout with schizophrenia).  Game theory also argues that is rational not to cooperate, which implies – logically speaking, of course - that a Game Theorist would never trust his or her Doctor, who must have an ulterior motive.  True to form, Game Theory flouts public health concerns and gives legitimacy to those who avoid vaccinations, dubiously described by Flanagan as “a rational exercise in pursuit of self-interest.”[3]  Apparently Flanagan – and Game Theory - forget David Hume’s famous contention in A Treatise of Human Nature (1739) that “reason is, and ought only to be the slave of the passions, and can never pretend to any other office than to serve and obey them.”[4]

As discussed, Game Theory also has no sense of collective values: Medicare can be privatized and the CBC slashed, raising the question of what is Canada, outside of Harper’s symbolic esteem for the military and (of course) the “cult” surrounding our Prime Minister’s excessive “leadership” (thus tearing a page from Hobbes’s Leviathan).  Because Game Theorists have no sense of the public, how is it that the “Harper Government” deigns to speak in terms of elected “public service” – surely a relic from a bygone age.  Conservative “parliamentarians” are actually living a public lie at the public’s expense by acting only in their self-interest: hence the so-called Fair Elections Act.

It is important to note that Pierre Poilievre, the Democratic Reform Minister who is responsible for the “Fair” Election agenda, attacks our Chief Electoral Officer Marc Mayrand in vitriolic terms derived from Flanagan’s book: “he wants more power, a bigger budget and less accountability” as quoted by the Globe and Mail in their record eighth editorial opposing the Fair Elections Act.[5]  Compare this with Flanagan’s text who writes in his conclusion of Game Theory and Canadian Politics: “Nevertheless, the evidence of self- interest is all around us … [for example] public servants seeking bigger budgets and career advancement.”[6] In other words, Poilievre’s speech writers are dipping into Flanagan to justify their case.

Meanwhile Flanagan laments in his forthcoming book Persona Non Grata that Harper is “Nixonian” and treats people as “disposable”, surely one of the hazards of Game Theory when only the “individual” counts – society be damned.[7]  Allow me to recommend by way of conclusion some folk wisdom, which comes from an observation of nature (Game Theory is also big in biology today): a tree does not grow in solitude; trees need other trees around them to survive and flourish.  In other words, we as people cannot thrive as self-interested individuals alone, a fact which indicates that the asocial and atomized model behind Game Theory as it applies to Canadian politics should be jettisoned lest it poison the public any further.

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[1] Thomas Flanagan, Game Theory and Canadian Politics (Toronto: University of Toronto Press, 1998), p. 5.

[2] Ibid., p. 164.

[3] Ibid., p. 73.

[4] David Hume, A Treatise of Human Nature, ed. Ernest G. Mossner (Toronto: Penguin, 1985), p. 462 (Book II, Section 3 “Of the influencing motives of the will.”)

[5]  Globe and Mail, “If only evidence could vote,” Saturday April 12, 2014, p. F9.

[6]  Flanagan, Game Theory and Canadian Politics, p. 164.

[7]  Globe and Mail, Thursday April 10, pp.A1,A4.

Canada and remembering the Magna Carta

Did you know that the year 2015 represents the 800^th anniversary of the signing of the Magna Carta by King John, who, by so doing (after being forced by English barons) acknowledged that the monarchy was under the law?  By raising the question of who sets limits on the authority of the King, the Magna Carta (or Long Charter) contributed to the rise of parliament.

Unfortunately James Moore, former Minister of Heritage, and our current Minister of Heritage, whose name escapes me, along with the rest of Cabinet, as well as, assuredly, the Prime Minister, have focussed their attention on more recent events to mark.  First there was the recognition of the War of 1812, and since then preparations have long been under way to remember our boys at Vimy Ridge in 1917, and the First World War in general.

This emphasis on our military history brings out a certain Roman sense of virility. But what about the medieval history of the “mother of all Parliaments”?  Surely the Government of Canada should want to celebrate the Westminster model of parliamentary democracy on such an auspicious occasion.  Or are the Conservatives suffering from a serious case of cognitive dissonance?

At any event, let’s also remember that 2015 is also our election year, and it’s our opportunity to set limits on the authority of our King Prime Minister.