Yesterday someone posted on Twitter the following (now deleted) tweet.
Another (also now deleted) tweet linked to a video of what seemed to have been an exchange between a person called Brad and the police, in which Brad sought to rely on his rights under Magna Carta.
The video is still available on Facebook and is worth watching in full.
A quick internet search also reveals sites like this one purporting to set out your rights under Article 61 of Magna Carta.
And on Twitter there are still tweets such as this.
Your rights under article 61 of the Magna Carta 1215 pic.twitter.com/GlADxlrQnW— Deborah Newing (@debsuenew) September 28, 2020
Is this true?
Is there a right of lawful rebellion under Article 61 of Magna Carta?
Does displaying Article 61 of Magna Carta in a shop window mean you cannot be fined or closed?
Let us find out.
Magna Carta is Latin for ‘the Great Charter’, a legal document written in Latin that first came into existence in 1215.
(By convention, and because it was originally in Latin, the ‘the’ is often missed out in the title by historians and lawyers when discussing Magna Carta, which I find amusing but is really not at all significant.)
An English translation of this Magna Carta is at the British Library website.
You will see this original Magna Carta is divided into numbered sections (known to historians and lawyers as chapters, not ‘Articles’).
At Chapter 61 is the following:
SINCE WE HAVE GRANTED ALL THESE THINGS for God, for the better ordering of our kingdom, and to allay the discord that has arisen between us and our barons, and since we desire that they shall be enjoyed in their entirety, with lasting strength, for ever, we give and grant to the barons the following security:
The barons shall elect twenty-five of their number to keep, and cause to be observed with all their might, the peace and liberties granted and confirmed to them by this charter.
If we, our chief justice, our officials, or any of our servants offend in any respect against any man, or transgress any of the articles of the peace or of this security, and the offence is made known to four of the said twenty-five barons, they shall come to us – or in our absence from the kingdom to the chief justice – to declare it and claim immediate redress. If we, or in our absence abroad the chief justice, make no redress within forty days, reckoning from the day on which the offence was declared to us or to him, the four barons shall refer the matter to the rest of the twenty-five barons, who may distrain upon and assail us 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.
Any man who so desires may take an oath to obey the commands of the twenty-five barons for the achievement of these ends, and to join with them in assailing us to the utmost of his power. We give public and free permission to take this oath to any man who so desires, and at no time will we prohibit any man from taking it. Indeed, we will compel any of our subjects who are unwilling to take it to swear it at our command.
If one of the twenty-five barons dies or leaves the country, or is prevented in any other way from discharging his duties, the rest of them shall choose another baron in his place, at their discretion, who shall be duly sworn in as they were.
In the event of disagreement among the twenty-five barons on any matter referred to them for decision, the verdict of the majority present shall have the same validity as a unanimous verdict of the whole twenty-five, whether these were all present or some of those summoned were unwilling or unable to appear.
The twenty-five barons shall swear to obey all the above articles faithfully, and shall cause them to be obeyed by others to the best of their power.
We will not seek to procure from anyone, either by our own efforts or those of a third party, anything by which any part of these concessions or liberties might be revoked or diminished. Should such a thing be procured, it shall be null and void and we will at no time make use of it, either ourselves or through a third party.
You will see that the phrase ‘lawful rebellion’ does not appear in Chapter 61, and neither is there anything which provides that if Magna Carta is displayed it renders a person or business immune from closure or fines.
The provisions is instead what is called a ‘security’ provision, setting out how the rights under Magna Carta could be practically secured and enforced.
If you read the provision you will see that the rights and powers of security are given to twenty-five barons (elected by other barons).
There is nothing in the provision to support the claims made on its behalf by the social media posts set out above.
If you do not believe this, read the provision for yourself.
But even if the original text of chapter 61 of Magna Carta had provided for lawful rebellion, or that the mere display of Magna Carta in a shop window would be enough to ward off law enforcement officials, the provision was removed within a year, when Magna Carta was reissued in 1216.
(It was reissued and amended many times.)
There is no sensible explanation for why a provision that was only in force 1215 to 1216 (and then only granted a power to 25 barons) would have the effect in 2020 of preventing a shop being closed under public health regulations if Magna Carta was placed in a shop window.
And that is the truth about Article 61 of Magna Carta.
There is, however, a serious point to be made about the various claims made about ancient legal documents, such as Magna Carta or the Bill of Rights.
There is not a strong tradition of ‘constitutionalism’ in England, and in the United Kingdom we do not have a portable and accessible document we can point and say ‘this is our constitution’.
And in the absence of a widely shared knowledge of the constitution, claims about Magna Carta, the rights of freemen of the land, and so on, become popular but unchecked.
As a matter of law and history, Magna Carta is now little more than a legal ornament rather than a living instrument, and it is rarely if ever successfully relied on in practice.
It is a legal text which politicians and others can praise safely, as it provides no real protections.
(In contrast, legal texts that do actually provide practical rights such as the Human Rights Act 1998 are often attacked by those same politicians.)
Some of Magna Carta is still in force, in its 1297 reissue, and you can see these provisions on the official legislation website.
And you can watch this, from another Brummie commentator on Magna Carta, Anthony Aloysius Hancock.
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