By Bruce Tyler Wick
Magna Carta took shape and form from January to mid-June 1215–during negotiations between royalist and rebel factions of barons, who at the time represented the political power of the kingdom.
Hostilities would break out between these factions less than three months after Magna Carta–with rebels appealing for French assistance, even offering Philip II’s son, the future Louis VIII, the English throne. But that time was not yet; and King John was proactive, and successful, in his efforts to avert armed conflict.
King John’s go-between with his disaffected barons was Stephen Langton, Archbishop of Canterbury, whose mediation the barons could hardly refuse. Nevertheless, by May the barons had moved from “disaffected” to “rebellious,” as they organized themselves politically and mobilized militarily.
Having previously taken an oath to “stand fast for the liberty of the church and the realm,” the barons in May 1215 renounced their allegiance to King John and marched on London, Lincoln and Exeter, meeting with no resistance. Once the rebels held London, the king’s supporters defected in numbers; and John was truly in trouble.
The king, presumably through Archbishop Langton, offered to submit all outstanding issues to a committee of arbitration, headed by the Pope. The barons refused, for reasons that will become apparent. So, at that point the king instructed Archbishop Langton to organize direct settlement talks. King John met the rebel leaders 10-19 May 1215 at Runnymede, a field between Windsor Castle, a royal fortress, and rebel headquarters at Staines.
Fortunately, Archbishop Langton had been working with the barons on their demands since January 1215. Langton had acquainted the barons with a largely forgotten charter of Henry I from the previous century, called the “Charter of Liberties,” which Langton thought could be made to suit the present occasion. Indeed, at the time the barons took their oath to “stand fast for the liberty of the church and the realm,” the barons demanded only that King John confirm Henry I’s “Charter of Liberties.”
To give an idea of the insecurity of the times, we need look no further than Item No. 9 of Henry I’s “Charter of Liberties”:
“9.) I forgive all murders committed before I was crowned. Subsequent murders shall stand before the justice of the Crown.”
Perhaps Item No. 9 is the unacknowledged source of President Obama’s policy of “looking forward, not backwards,” regarding torture.
Both implicit and explicit throughout Henry I’s Charter: the king’s assurance that conditions will improve with him in control:
“12.) I impose a strict peace on the land, and command it be maintained.
13.) I restore the law of King Edward and the amendments which my father introduced upon the advice of his barons.”
This looking to the past, for reassurance and inspiration in the present, is a common theme of English history; and according to Nietzsche, it is an entirely commendable use of that history. Kindly note, Henry I acknowledges maintaining a “strict peace” throughout the land is one of his duties. “Peace,” even in relatively untroubled times, is a complex social good, requiring constant attention and considerable skill.
During negotiations at Oxford in the spring–negotiations, which the king did not attend personally–the barons produced a first draft of a charter of liberties of their own, which drew heavily on Henry I’s “Charter of Liberties.” Seven articles of the barons’ early proposed charter, found their way into the baron’s working draft at Runnymede (called “Articles of the Barons”), and these seven articles ended up in Magna Carta.
The barons having come to Runnymede with a draft “Magna Carta” in hand, the parties were able to reach agreement relatively quickly. By 15 June 1215, having assembled 10 June, king and rebel barons had agreed on a text. Four days later, on 19 June 1215, the rebels renewed their oaths of loyalty to John, and copies of the charter were formally issued.
The three to four additional days were required to produce sufficient copies of even the heavily abbreviated Latin text of Magna Carta. Copying time, while it could have been wasted, was likely given over to anticipated problems in implementing the new Charter.
So, on 19 June 2015 Magna Carta became a reality; and for two months or so, it succeeded in staving off armed conflict and foreign intervention. Some tout the failure to prevent armed conflict for very long, as a “failure” of the whole effort–which is no doubt why we celebrate Magna Carta today; namely, failure. But if Magna Carta was a failure, it was certainly an ironical one!
Nietzsche’s secret to a good life is to die at the right time. Nothing if not farsighted, John, age 49, contracted dysentery and died the night of 18-19 October 1216 at Newark Castle, Nottinghamshire–fighting not only many of his own barons, but also the allied, invading forces of Prince Louis of France and Alexander II of Scotland. At the time of his death, John’s military situation has been described as a “stalemate”–difficult to daunting, but “uncompromised by defeat.”
So John died, but Magna Carta lived–proving the truth of the legal maxim that a thoroughly bad man may make a perfectly good Will. Pope and Church threw their weight behind the government of John’s 9-year-old son, Henry III; and in under a year, fighting had ceased and foreign forces had departed.
Henry III’s government began the practice of re-issuing Magna Carta–first in hopes of political support, and later in return for revenue. Commentators note Magna Carta “became increasingly embedded into English political life during Henry III’s minority.”
Legitimating Armed Resistance to King John
One provision of Magna Carta was never re-issued or adopted as statute law; namely, Article 61, the so-called enforcement clause or “Security Clause.” Article 61 appears only in the original 1215 version of the Charter.
Article 61 seems to have assumed violations of Magna Carta would be by the king or his officials, alone–never by the barons. Were such royal violations to occur, four barons of the Committee of 25 barons created by the Charter, would seek redress from the king. Were no redress forthcoming, the four barons would refer the matter to–
“the twenty-five barons, who may distrain upon and assail us [i.e., the king] in every way possible, with the support of the whole community of the land, by seizing our castles, lands, possessions, or anything else saving only our own person and those of the queen and our children, until they have secured such redress as they have determined upon. Having secured the redress, they may then resume their normal obedience to us.”
Thus, Magna Carta legitimates, even institutionalizes, armed resistance to John and his successors, for claimed breaches of the Charter. Far from being devoid of political theory, Magna Carta addresses forthrightly perhaps the most difficult problem in politics: what to do about a government; specifically, a chief executive, who will not abide by the law–even when that “law” is the king’s own prior word, as lawgiver?
Some ridicule Magna Carta’s “solution” to this political problem, as tantamount to civil war; and indeed, attempting to seize the king’s “castles, lands and possessions” may well result in all-out civil war. But I see the barons as attempting to regularize, via Magna Carta, what they were threatening to do before Magna Carta; namely, to escalate the conflict politically and and militarily, until the king came to terms. With Magna Carta, the king, his barons, and indeed “the whole community of the land” [Art. 61], knew “the terms” the king would have to return to.
Perhaps more likely than “civil war,” then, was some sort of “low intensity conflict,” or no armed clashes at all. Such were at least the possibilities. By contrast, the much admired “Petition of Right”–some 400 years later, in 1628–contained no mechanism within the Petition itself for monitoring royal compliance or for redressing breaches of the granted Petition.
Sir Edward Coke and others, who urged the Petition forward, argued the royal courts would enforce the Petition–in cases brought to them, which relied upon the Petition. Alleged breaches of the Petition could also be raised in Parliament via further petitions or by proposed legislation. But in 1629, Charles I dissolved Parliament–as he hoped forever, but actually for 11 years–in part, because of a claimed breach of the “Petition of Right.”
Depriving the English of their Parliament, for an indefinite period, cut off a main avenue for redressing grievances and for opposing Charles I’s foreign and domestic policies. Charles I’s 11 years of “direct rule” (i.e., without a Parliament, and without even a promise to convene one) must, therefore, be regarded as a cause of the English Civil War. Though such a conclusion is commonsense; it is also implied by the treatment of 17th Century English civil strife and its outcome, as precedent that an English king cannot govern without Parliament’s consent.
Thus, there appears to be no satisfactory solution–certainly no entirely peaceful one–to the problem of a hard-charging Chief Executive, determined to flout a country’s laws and to upend its institutions.
Magna Carta and Duress
Almost immediately after issuing Magna Carta, King John appealed to the Pope to annul the Charter. John must have argued duress, because duress appears to have been the Pope’s principal ground for setting aside Magna Carta. Since John had been “forced to accept” the Charter, Magna Carta was “not only shameful and demeaning, but also illegal and unjust.” Accordingly, the Charter was “null and void of all validity forever.”
The Pope’s problem: no English king since John has taken John’s view of “duress” (or for that matter, of Magna Carta); namely, that a king is not bound by agreements not freely entered into. Quite the contrary, the English appear to have adopted the view–
“(39) No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.” [Magna Carta, 1215].
Article 39 would henceforth read, as follows:
“(39) No man, of whatever estate or condition he may be shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the due process of law.” [Magna Carta, 1354, emphasis added].
The “clarification” of Article 39 necessarily emphasizes that the “no one” in Article 40 means, “no person, without exception”:
“(40) To no one will we sell, to no one deny or delay, right or justice.”
Articles 39 and 40, even without more, have ennobled all of humankind. No mean achievement. And whose seal appears upon this “Great Charter of Liberties”?
BRUCE TYLER WICK is a lawyer and registered parliamentarian, who practices mainly in northeast Ohio.
Attorney Wick’s work with serving the military and with veterans has involved principally criminal defense and appeals; clemency, parole and administrative matters; and VA claims.
A student of legal history in the tradition of his teacher, Samuel Sonnenfield, Attorney Wick claims first and exclusive authority for discovering that Ohio’s Constitutional Convention of 1802 granted the right to vote to black men over 21. That advance, though epochal, was quickly taken away by fraud.