So-called Article 61 of Magna Carta – and the so-called right to rebel

Protesters who occupied Edinburgh Castle have claimed they are doing it under “Article 61” of Magna Carta – in reality Chapter 61. This, they would presumably argue, offers a “right to rebellion” against the monarch. Of course that is nonsense, not least because Chapter 61 was an agreement between King John and his magnates – the barons whose rebellion led to the signing (or rather sealing) of Magna Carta in 1215. It was an acceptance that those barons could rebel – or temporarily abandon their fealty to the monarch – but return to the fold without loss of their feudal estates once the issue at hand was resolved. It was not a carte blanche for hoi polloi to rise up and seize royal castles.

What is significant about Magna Carta is the principle underlying it – that there was a quasi-contractual relationship between the monarch and the “people”. The “people” theoretically had a right to insist on monarchs’ performance of the contract – even to the point of resorting to force of arms against them if they failed to fulfil their obligations or overstepped their authority. So, remarkably, the first 1215 version of Magna Carta states this right to rebel explicitly in Chapter 61. The barons:

“may distrain upon and assail us [ie 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.”

Although chapter 61 was not republished in later versions of the charter, this legalised insurrection was resorted to on numerous occasions – as it had been prior to the rebellion that led to Magna Carta – with due formal notice that the barons intended to withdraw fealty (the sworn promise of loyalty) and make war on their king.

Although asserting the right of legalised rebellion, the chapter can also be seen as an early assertion of “the rule of law”, meaning the “rule” that the monarch (or the government) is subject to the law and cannot defy it or overturn it arbitrarily. Its sanction, a rebellion of the people, can also be seen as justification of extreme measures against the government – as it was when American colonialists, subject to the British Crown, drew on Magna Carta and deemed the Crown “no longer fitted to be the ruler of a free people” and thus set course on a rebellion that led to their independence.

The right of rebellion, again, was not new but a right inherent in the feudal system. This meant that the idea of treason, as we know it today, was not part of the feudal system, but was something introduced at a later stage.

Under feudalism a rebel against the monarch’s authority could have his lands removed (since he holds them as fiefs of the Crown, that is as a vassal in exchange for loyal service) but there was no legal sanction such as execution for treason (for the magnates at least). The system thus authorised falling out with the monarch and coming to a new accommodation with him, and it is in these conflicts that the constitution was being moulded in this period.

Chapter 61 also put in place a council of 25 barons, elected by other barons, to ensure the king adhered to the provisions of the charter. But it is clearly not a right of rebellion for just anybody. It is specific to those with a direct relationship with the monarch who hold their lands of the monarch. It is all about property, very little about wider rights. While the barons might bring the populace to their side of the argument, using ordinary people in their battles with the King – “with the support of the whole community of the land” – that did not mean the whole community had this right. As servants of the barons they would presumably go unpunished once the issues of the rebellion were settled, but that’s as far as it went.

Henry III came to the throne in 1216 at the age of 9 at a time when the French had invaded England, backed by rebel barons with the intention of supplanting King John with the King of France’s son, Prince Louis. The new king’s regents rapidly reissued and reaffirmed Magna Carta, but minus Chapter 61, as a means of signalling to the barons a willingness to accept their concerns and bring them back into the fold. As they returned to fealty, their lands were officially given back to them according to the feudal tradition outlined above.

Once the French were removed there followed a period of relative peace during which a new version of Magna Carta was issued, in 1225, regarded thenceforth as the legally binding document of almost constitutional authority which monarchs would swear to uphold upon their coronations – and at other times too if the resolution of conflicts required it.

Twitter: alrich0660

More on Magna Carta: Is it such a great charter?

On treason: Do we need a modern treason law? A historical perspective