Magna Carta 1215 Article-61 A Deeper Analysis

Magna Carta 1215 Article-61
A Deeper Analysis

Magna Carta was not intended to be a great charter of rights for all people, but designed by the barons to ensure that their rights were protected against the king’s power.

Most of the 63 clauses granted by King John dealt with specific grievances relating to his rule. However, buried within them were a number of fundamental values that both challenged the autocracy of the king and proved highly adaptable in future centuries. Most famously, the 39th clause gave all ‘free men’ the right to justice and a fair trial. Some of Magna Carta’s core principles are echoed in the United States Bill of Rights (1791) and in many other constitutional documents around the world, as well as in the Universal Declaration of Human Rights (1948) and the European Convention on Human Rights (1950).

Having said that, most if not all European Americans are completely in ignorance to the true meaning of Magna Carta asserting that it applied to all – all in the sense of all men and all women – which is very far from the truth. Most American do not have any knowledge concerning their own Bill of Rights not even the Declaration of Independence. Americans are all too quick to say they are free people and the foundation of democracy to which the world should follow – the reality of America and that of it’s people are far from their deluded view of themselves and as much removed from the historical meanings of Magna Carta.

The Latin reads as follows:

Cum autem pro Deo, et ad emendacionem regni nostri, et ad melius sopiendum discordiam inter nos et barones nostros ortam, hec omnia predicta concesserimus, volentes ea integra et firma stabilitate (in perpetuum)[2] gaudere, facimus et concedimus eis securitatem subscriptam;

videlicet quod barones eligant viginti quinque barones de regno quos voluerint, qui debeant pro totis viribus suis observare, tenere, et facere observari, pacem et libertates quas cis concessimus, et hac presenti carta nostra confirmavimus; ita scilicet quod, si nos, vel justiciarius noster, vel ballivi nostri, vel aliquis de ministris nostris, in aliquo erga aliquem deliquerimus, vel aliquem articulorum pacis aut securitatis transgressi fuerimus, et delictum ostensum fuerit quatuor baronibus de predictis viginti quinque baronibus, illi quatuor barones accedant ad nos vel ad justiciarium nostrum, si fuerimus extra regnum, proponentes nobis excessum, petent ut excessum illum sine dilacione faciamus emendari.

Et si nos excessum non emendaverimus, vel, si fuerimus extra regnum, justiciarius noster non emendaverit infra tempus quadraginta dierum computandum a tempore quo monstratum fuerit nobis vel justiciario nostro, si extra regnum fuerimus, predicti quatuor barones referant causam illam ad residuos de illis viginti quinque baronibus, et illi viginti quinque barones cum communa tocius terre distringent et gravabunt nos modis omnibus quibus poterunt, scilicet per capcionem castrorum, terrarum, possessionum et aliis modis quibus poterunt, donec fuerit emendatum secundum arbitrium eorum, salva persona nostra et regine nostre et liberorum nostrorum; et cum fuerit emendatum intendent nobis sicut prius fecerunt.

Et quicumque voluerit de terra juret quod ad predicta omnia exequenda parebit mandatis predictorum viginti quinque baronum, et quod gravabit nos pro posse suo cum ipsis, et nos publice et libere damus licenciam jurandi cuilibet qui jurare voluerit, et nulli umquam jurare prohibebimus. Omnes autem illos de terra qui per se et sponte sua noluerint jurare viginti quinque baronibus de distringendo et gravando nos cum eis, faciemus jurare eosdem de mandato nostro sicut predictum est.

Et si aliquis de viginti quinque baronibus decesserit, vel a terra recesserit, vel aliquo alio modo impeditus fuerit, quominus ista predicta possent exequi, qui residui fuerint de predictis viginti quinque baronibus eligant alium loco ipsius, pro arbitrio suo, qui simili modo erit juratus quo et ceteri. In omnibus autem que istis viginti quinque baronibus committuntur exequenda, si forte ipsi viginti quinque presentes fuerint, et inter se super re aliqua discordaverint, vel aliqui ex eis summoniti nolint vel nequeant interesse, ratum habeatur et firmum quod major pars eorum qui presentes fuerint providerit vel preceperit ac si omnes viginti quinque in hoc consensissent; et predicti viginti quinque jurent quod omnia antedicta fideliter observabunt, et pro toto posse suo facient observari. Et nos nichil impetrabimus ab aliquo, per nos nec per alium, per quod aliqua istarum concessionum et libertatum revocetur vel minuatur; et, si aliquid tale impetratum fuerit, irritum sit et inane et numquam eo utemur per nos nec per alium. [Articles, section 49.]

In modern English translation we have:

But when for God, and to any reform of our kingdom, and to better sopiendum discord between us and the barons of our resultant material, these all aforementioned concesserimus, wishing it entire and firm stability (forever) to enjoy, we make and grant to them the security subscriptam;

namely that the barons choose five and twenty barons of the kingdom whom they will, who ought for all the strength of their observe, maintain, and make observed, the peace and liberties which the cia concessimus, and with this present charter of ours to reiterate; so of course that, if we, or justiciarius our, or for our or any of our servers, in any way towards anyone deliquerimus, or any articles of peace or security have broken we have been, and the offense be notified to four barons of the aforesaid twenty-five barons, those four barons scheduled to us or to the chief justice of us, if we have been outside of the kingdom, proponentes us excess, will be asked to excess him without dilacione do improved.

And if we be not excessive emendaverimus, or, if we have been outside of the kingdom, justiciarius our emendaverit within the time forty days computandum a time where monstratum has been to us or the honourable chief justice of our, if you are outside of the kingdom we have been to, stacked the four barons at times cause it to residue of those twenty-five barons, and those twenty five barons with the communa for the entire land distringent and gravabunt we ways all of which will, of course by arrest camp, world, property, and other ways in which they will be able, until it has been emendatum according to the decision of their saving our personality and regine our and our children; and when it has been emendatum intendent of us like the first did.

And whoever of the land of the juret that to all of the above exequenda will be displayed the instructions of the aforementioned twenty-five baronum, and that it is we for being able to stitch with them, and we publicly and freely give leave jurandi any who, swearing he wants to, and no one ever swearing prohibebimus. All those in the land who of themselves and of their own accord are unwilling to swear to the twenty five barons of distringendo and gravando us with them, we do swearing the same about our command as predictum.

And if any of the twenty-five barons has died, or from the earth gone, or any other way get checked has been a violation of these aforementioned could carry out, that the remnant have been out of the aforesaid twenty-five barons choose another place of his, for their choice, who in a similar way will be witness where the rest of us. But In all that these twenty-five barons are committed to exequenda, if maybe they are twenty-five present have been, and each other over the matter some discordaverint, or some of them summoniti they do not or cannot attend, this should be considered and the firm that major part of those who present have been provides or preceperit and if all twenty-five in this consensissent; and stacked twenty-five jurent that all antedicta faithfully observabunt, and for the whole to be able to his make observed. And we nothing will request from any, by us or by another, by which any of these concessionum and freedoms rewritten or diminished; and if any such thing has been procured, let it be void and never use it personally by us or by another.

Translation by the British Library:

61. Since, moveover, for God and the amendment of our kingdom and for the better allaying of the quarrel that has arisen between us and our barons, we have granted all these concessions, desirous that they should enjoy them in complete and firm endurance forever, we give and grant to them the underwritten security, namely, that the barons choose five and twenty barons of the kingdom, whomsoever they will, who shall be bound with all their might, to observe and hold, and cause to be observed, the peace and liberties we have granted and confirmed to them by this our present Charter, so that if we, or our justiciar, or our bailiffs or any one of our officers, shall in anything be at fault towards anyone, or shall have broken any one of the articles of this peace or of this security, and the offense be notified to four barons of the foresaid five and twenty, the said four barons shall repair to us (or our justiciar, if we are out of the realm) and, laying the transgression before us, petition to have that transgression redressed without delay. And if we shall not have corrected the transgression (or, in the event of our being out of the realm, if our justiciar shall not have corrected it) within forty days, reckoning from the time it has been intimated to us (or to our justiciar, if we should be out of the realm), the four barons aforesaid shall refer that matter to the rest of the five and twenty barons, and those five and twenty barons shall, together with the community of the whole realm, distrain and distress us in all possible ways, namely, by seizing our castles, lands, possessions, and in any other way they can, until redress has been obtained as they deem fit, saving harmless our own person, and the persons of our queen and children; and when redress has been obtained, they shall resume their old relations towards us. And let whoever in the country desires it, swear to obey the orders of the said five and twenty barons for the execution of all the aforesaid matters, and along with them, to molest us to the utmost of his power; and we publicly and freely grant leave to everyone who wishes to swear, and we shall never forbid anyone to swear. All those, moveover, in the land who of themselves and of their own accord are unwilling to swear to the twenty five to help them in constraining and molesting us, we shall by our command compel the same to swear to the effect foresaid. And if any one of the five and twenty barons shall have died or departed from the land, or be incapacitated in any other manner which would prevent the foresaid provisions being carried out, those of the said twenty five barons who are left shall choose another in his place according to their own judgment, and he shall be sworn in the same way as the others. Further, in all matters, the execution of which is entrusted,to these twenty five barons, if perchance these twenty five are present and disagree about anything, or if some of them, after being summoned, are unwilling or unable to be present, that which the majority of those present ordain or command shall be held as fixed and established, exactly as if the whole twenty five had concurred in this; and the said twenty five shall swear that they will faithfully observe all that is aforesaid, and cause it to be observed with all their might. And we shall procure nothing from anyone, directly or indirectly, whereby any part of these concessions and liberties might be revoked or diminished; and if any such things has been procured, let it be void and null, and we shall never use it personally or by another.

In other words – the Barons having made the rules for bringing peace to the realm state that if they break any of the rules – then you may seize their castles etc.. If the Barons do not keep their end of the bargain then we can all take action against them. It does not say that if king John does not keep his word then we can seize his castles – and in regard to our own monarch – she was not deposed. We still have a legitimate Queen of England. It matters not that the monarch committed treason – one can not use Article-61 to justify any actions – which only spell out actions one can take against the Barons.

What are the implications for those in the New Chartist Movement and those that are involved with “peaceful” dissent?

(1) Peers who in 2001 thought that by invoking Magna Carta 1215 and specifically Article-61 believed it to be addressed at the Monarch – whereas it was addressed to the Barons themselves and so the monarch ignored it.
(2) The Peers – continued to mistakenly believe it referred to the monarch then went on to denounce and dispose of the monarch – which was erroneous.
(3) Today all who sign an oath of allegiance to the Barons are signing to distrain and seize the assets of the Barons.
(4) The legality of challenging those that have taken an oath to the monarch can not be challenged on the grounds of Article-61
(5) Article-61 confers no legal Common Law rights whatsoever to act in a way that is contrary to Common and Civil Law.

There is no legal basis to take action on Article-61 it has no lawful validity in any English Court. We have shown there is no legal or historical validity to trial by jury as some ignorant people would claim – though there is some validity for those that claim “democracy” the state when historically a few privileged people rule and have power over an unprivileged many – the names of the privileged may change a “monarch” the “rich elite” etc.. but this does not confer people power or people rule – one needs a differing form of social cohesion and organisation for that.

End Notes

1. The original manuscripts are written continuously without section breaks; here the generally accepted numbering of the clauses has been followed. There was no title or headline.
2. This article is result of a changing preference in trial methods, a change heavily influenced by pope Innocent III’s edict at the fourth Lateran Council in 1215 that forbad trial by ordeal, a previously usual trial method.

The Saxon invaders had brought to Britain the crude method of determining guilt, for crimes such murder, theft, robbery, harbouring, forgery, arson, through trial by ordeal. The ordeal would be by fire or by water, the belief being God would miraculously intervene to protect the innocent. If found guilty, the accused lost a hand and a foot, and was also banished.

Later, the Normans introduced trial by battle and trial by inquisition. The latter was trial by the country (represented by a jury, usually of twelve knights or freemen). Trial by inquisition was used when trial by battle was inappropriate—the accused was a woman or an old man—or if the accused had appealed, the appeal eventually reaching the county court. A writ awarding a trial by inquisition could also be bought from the king.

Thus, this article entitles any person to a writ of inquisition without payment, rather than submitting to trial by battle or by ordeal—“life or limb”.

(Source: http://www.constitution.org/gje/gj_01.htm)
3. The Magna Carta was a first attempt at separating the powers of the legislature (who make the laws), the judiciary (who pass judgement on the laws) and the executive (who carry out the judgements). Translations widely available today take no account of the intention to curb the authoritarian and arbitary actions of King John by a separation of these powers.

The original Latin phrase vel per legem terre in Magna Carta has frequently been translated as “or by the law of the land”. This current translation differs from that literal interpretation because
1. the phrase “Common Law” more clearly distinguishes between laws made by the sovereign, potentially and often for his benefit, and the common law developed over hundreds of years to protect all members of society and which, from 1346, the king was sworn to maintain;
2. the Latin word vel may be translated as “and” or, commonly, as “or”. If the latter translation (“or”) is used, there is a potential implication in Article 39 that there would be occasions when the accused person was to be judged by his peers, but using the king’s arbitary self-serving law, rather than the established Common Law. In such a case, there would be a contradiction to the intentions of the Magna Carta—to curb the power and scope of the king.

In light of the above, the common translation of per as “by” does not show sufficiently clearly that the king was being permitted merely to act in an executive fashion against his subjects, only under orders from the judiciary, who had made their order according to established law. Thus, the alternative translation of “according to” is more appropriate.[6]
4. This was at the foot of the Manuscripts Ci and Cii, both held in the British Library.

(There are four original manuscripts of the Magna Carta still surviving. The two held in the British Museum are designated Ci and Cii. The other two copies are at Lincoln Cathedral, designated L, and at Salisbury Cathedral, designated S.)
5. This was at the foot of Manuscript Ci, which is one of the two manuscripts held in the British Library, and sometimes considered to be the oldest copy.

End

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