"This was the first of the famous Chartas and Gartas of the Realm and was invented by the Barons on a desert island in the Thames called Ganymede. By congregating there, armed to the teeth, the Barons compelled John to sign the Magna Charter, which said:
1. That no one was to be put to death, save for some reason (except the Common People).
2. That everyone should be free (except the Common People).
3. That everything should be of the same weight and measure throughout the Realm (except the Common People).
4. That the Courts should be stationary, instead of following a very tiresome medieval official known as the King's Person all over the country.
5. That 'no person should be fined to his utter ruin' (except the King's Person).
6. That the Barons should not be tried except by a special jury of other Barons who would understand.
Magna Charter was therefore the chief cause of Democracy in England, and thus a Good Thing for everyone (except the Common People)."
WC Sellar and RJ Yeatman - '1066 And All That'
I seem to have ended up in a series of online arguments with devotees of 'Article 61'. This was a clause of the 1215 version of Magna Carta which they believe entitles them to ignore British law as they see fit, especially as regards coronavirus restrictions. It has even been pasted up outside shops as some kind of warding talisman. Needless to say, this is almost as confused an understanding of history as the satirical version above. It has definitely had no effect on the police and courts carrying out their duties. However, as it touches on medieval history and law, and especially the history of the First Barons' War - my own speciality and subject of MA study - I've got interested in the arguments they've tried to make about its continuing relevance and validity, and that has led me down some strange rabbit holes.
This post is as much as anything an attempt to corral all of the arguments into one place so that I can just post one link instead of having to write paragraphs of argument each time. If you're going to argue with me about Magna Carta, please read all of this, and then and only then come at me with your Q-Anon, Freemen on the Land weirdness. Thank you.
So, what is 'Article' (Clause) 61?
It's quite a long one, so I shalln't repeat it in full. There's a link to it on this webpage. To paraphrase:
The King (John) says that the barons can appoint 25 of their number to watch for breaches of the Charter. They must then bring this to the notice of the king (or his Justiciar if he is out of the kingdom), and he then has 40 days to make amends. If this does not happen, the barons are permitted to "distress and harass us by all the ways in which they are able" until the king gives in. During this time people must swear obedience to the barons, not the king. And there's some housekeeping about appointing new guardian barons once one of the listed 25 dies.
Now, Magna Carta is - in places - pretty radical stuff (I mean, it's also very mundane on places, talking about fish weirs and weights and measures). I've discussed it before, but to reiterate - Clause (nb - not 'Article') 61 is dynamite for a medieval monarch. Remember that back then, monarchy was regarded as being divinely ordained by God (which is why coronations are even today still done by bishops). This places a self-elected junta of 25 warlords above Royal - and therefore even divine - authority. No medieval king could have ever lived with this in the long term. It betrays the origins of Magna Carta - as a peace treaty to head off a civil war. It is clear from this clause that the barons don't trust John to keep his word. Therefore they are compelling him to agree that if he doesn't, then they can make war against him without the penalty of being regarded as rebels or traitors. This is not a trivial point - rebellion was serious business in medieval times. Rebelling against lawful Royal authority was treason, and could lose you your life, and your family all of its lands. It could even get you barred from heaven - rebels were routinely excommunicated by bishops - if God has anointed the king, then rebels are rebelling against God's will. So the Clause attempts to put rebellion on a legal footing, due to John's breach of the Charter. There's a whole argument that Magna Carta was at least in part the brainchild of Archbishop Stephen Langton, and he had studied Biblical precedents for lawful rebellion against Royal authority.
However, in practical political terms, that Clause is also clearly a step too far, and the fact that John put his seal even to this should have been a warning to the barons that he had no intention of ever complying with it. Indeed, within two months, John had been released from his vow to obey Magna Carta by the Pope, and was busy raising an army and seizing key castles. The 1215 Magna Carta died in August 1215.
The war began in late 1215 and lasted for two years. During this time, John died of dysentary on campaign at Newark Castle in 1216. As his son Henry was only nine years old, the remaining loyalist barons appointed ageing grandee William Marshal as Regent. Marshal, a canny operator, went to the rebel barons (who now also had an opportunisitic French army in support) and made a proposal - he would reissue Magna Carta in King Henry III's name, conceding 75% of what the barons wanted, and promising further discussion about some other bits, provided they agreed to drop certain sections. The 'certain sections' included Clause 61. Most of the barons agreed - they didn't hate the monarchy, only King John personally, and he was now dead. So in 1216, Magna Carta was reissued shorn of its contentious clauses, and enough support fell away from the rebel cause that Marshal was able to defeat the remaining barons and the French forces in the field, at Lincoln and Sandwich, in 1217. Having had some time for more negotiations with the barons, another modified version of Magna Carta was agreed in 1217, and this finally settled the Baron's War. Magna Carta got another - again slightly modified - reissue in 1225, when King Henry came of age, just to confirm that he was still abiding by it. It is worth remembering, however, that Clause 61, the most contentious, had been quietly dropped in 1216 and was never, ever mentioned again.
Why Clause 61 is no longer valid
The 'Article 61' devotees seem to argue that the 1215 Magna Carta was a compact between the King and the People, and that it therefore can only be annulled with the consent of both parties. Since the People didn't consent, it's therefore still in force. Certainly it can't be annulled by an "Italian holy man". This is to completely misunderstand the nature of medieval law and kingship, and especially 13th century English kingship. So, here goes...
1. Pope Innocent III was not simply an "Italian holy man". We might think of the Papacy that way now, in modern Britian, perhaps even as far back as Elizabethan England, but in the 13th century everyone was a Catholic, and the Pope held the Keys to the Kingdom of Heaven. Innocent in particular had set himself up as an arbiter of disputes from Spain to Poland. Only a priest could relieve a man of a vow sworn to God, and John had sworn before God to uphold Magna Carta. Therefore only a priest could remove that obligation from him, and who better than the Pope to clear the conscience of a King?
2. In 1215, Pope Innocent was not only King John's spiritual superior, but also his feudal overlord. John had been in rebellion against Papal authority from 1208 to 1213, but part of the agreement he made in 1213 to be accepted back into the fold was to submit himself to Papal authority. England in effect had become a vassal state of the Papacy. This was not an uncommon thing - John's brother Richard had submitted England to the Holy Roman Empire in order to get out of jail in 1194. But again, it absolutely gave Innocent the right to veto Royal charters on a secular as well as a religious level. Innocent accepted John's argument that he had only agreed Magna Carta under duress, and therefore it had never been valid in the first place. By the way, England paid 1,000 marks annual tribute to the Papacy until 1333, when England was more powerful and the Papacy less so, and Edward III simply stopped paying.
3. There was no such thing as 'The People' in 1215. This is a concept of Englightenment statehood. It stems from the English Civil Wars and the French and American Revolutions - the Declaration of the Rights of Man and the Declaration of Independence. It involves concepts that people in the 13th century would simply not have understood. Magna Carta was a Royal Charter of rights granted by the King to his subjects. It dealt mainly with the rights of those holding lands from the King (barons), and Clause 61 dealt exclusively with the barons. As an agreement with the barons, the King and barons could change that agreement, and as I say, in 1216 and 1217, they did just that.
4. Magna Carta did not become English statute law until 1297, when King Edward I headed off another baronial revolt by agreeing to yet another modified version of it. Needless to say, this version had no Clause 61 or its equivalent. Edward I, "the English Caesar", would have probably killed anyone who dared to even suggest it.
5. After that, no-one really cared much about Magna Carta until the 1640s, when those who opposed King Charles I were looking for a precedent for reining in Royal authority. It got a revival around this time, and started to achieve the legendary status that it has today.
6. However, it's worth remembering that it's just English law, and as such has no more force or validity than any other law. As a law, it can be changed, amended or repealed, just like any other law. We don't have a written constitution. Just laws. And laws can be changed, and have been. Parliament has had the sole power to make law since the 1689 Bill of Rights was agreed.
Which bits of Magna Carta are still law?
I think that a lot of the confusion over 'Article 61' stems from the fact that people have heard that some parts of Magna Carta are still British law. This is true, but it is not true in the way that they think it is.
Over the centuries, most of the 1297 Magna Carta clauses have been repealed as new laws are made. Today, only three clauses still remain on the statute books. These are:
- Clause 1, a framing clause, which just says that the Charter confirms the other liberties below (most of which have since been removed).
- Clause 9, which confirms that the City of London and the Cinque Ports still retain all of the Royal rights granted to them prior to the Charter.
- Clause 29, which rolls together two Clauses (39 and 40) of the old 1215 Magna Carta into the most important statement of English liberties ever made. This is the remaining radical core of the old 1215 charter, and it's worth restating in full:
"No Free man shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right."
This is the (only) part of Magna Carta that is still relevant, and which is seen by some as the founding principle of English law, and I think it's this that the Article 61 devotees have some hazy recollection of and want to invoke in their protection. However, on close examination it clearly doesn't suit their purposes, because it clearly states that judgement can be passed upon you "by the Law of the Land" (per legem terrae). Parliament makes the Law of the Land. It can close your shop or make you wear a mask to prevent the spread of a communicable disease.
Edit: Muddying the waters
Since starting to delve into this, I've found a couple of things that the Article 61 truthers like to quote to suggest that the 1215 Magna Carta is still valid.
The first is a report from the Daily Torygraph in March 2001. A BBC report also mentions the same incident. Four members of the House of Lords tried to present a petition to the Queen which cited 1215 Magna Carta allowing them, as 'barons' to tell the Queen that she shouldn't give assent to the 2001 Treaty of Nice, which increased the powers of the European Union. Of course, their petition failed, because 1215 Magna Carta is no longer valid, and besides, Parliament had given its assent to it, and the Queen has a constitutional duty to ratify the decisions of Parliament. The Article-ites seem to think that MAGNA CARTA WAS LAWFULLY INVOKED and therefore ALL SUBSEQUENT GOVERNMENTS ARE UNLAWFUL. This is, needless to say, not how anything works, not even Clause 61 of 1215 Magna Carta (the Treaty of Nice would not have been a breach of the Charter, and therefore Clause 61 would not have applied even if it were still valid, which, of course, it isn't).
The second was drawn to my attention by an Irish historian. In 2007 the Irish government annulled 1215 Magna Carta. The logical inference might be that therefore it had been valid up to that point. However, it was the result of discovering that some ancient English laws might still have some validity in Ireland, especially the one making King Henry VIII King of Ireland. So there was a move to just blanket annul every law prior to 1922 - the founding of the Irish Free State - just in case. In this case, they annulled a law they didn't need to, as the June 1215 Magna Carta had already been annulled in August 1215. Still, belt and braces and all that.
Neither of these things - over-caution by the Irish Republic, or an attempt by Brexit-supporting peers to block a European treaty - mean that 1215 Magna Carta is still valid. It isn't. Only three clauses of 1297 Magna Carta are, and they don't give you a lawful right to rebellion.
Now put your mask on and stop spouting nonsense.
