CHAPTER 9

The Magna Carta barons were guilty of treason

This piece was written to accompany a mock court case held in Westminster’s atmospheric medieval hall with actors on trial before real judges. The accused were the barons who forced King John to agree to Magna Carta, and the question was whether they were guilty of treason. This piece explores the wider issues the barons’ supporters tend to gloss over, like the barons giving the crown of England to the king of France.  

Tonight, in Parliament’s historic Westminster Hall, legal luminaries from around the English-speaking world will gather to hear a mock trial of the Magna Carta barons.

The charge the ancient nobles face could not be more serious.

Treason.

It may not be the word we first think of when considering Magna Carta, but it is an inspired slant on this year’s octocentenary celebrations of 1215.

Most people’s sympathies will, I imagine, lie with the barons. Their defence team will no doubt go to great lengths to milk this public sympathy. We will be asked to consider the priceless gift the barons left posterity—the cornerstone of parliamentary democracy, revered across the English-speaking world. The oratory will be powerful stuff, allowing the defence case to close, one suspects, with a teary-eyed rendition of ‘Rule Britannia!’, and possibly even ‘Jerusalem’ if all goes very well.

On the other side of the Hall, the prosecution will have more of an uphill battle. However, they should be bolstered by knowing that the facts are on their side. Their job will be to take apart the barons’ patriotic story forensically, exposing the tawdry ambitious saga for what it really was.

The prosecution will begin with the facts, which are mercifully fairly simple.

In 1214, John lost the battle of Bouvines (just outside Lille airport), and with it a vast swathe of English land in France. It was a catastrophe for the English crown—a second Battle of Hastings.

Back home, John’s barons were incandescent. They had been bled white to fund the ill-starred campaign, and in the end it had all come to nothing—no victory, no plunder, no continued power in France. They went into open revolt, renouncing their feudal obligations to serve in John’s army or pay his taxes.

It was brinkmanship with the highest stakes. Less than a century earlier, England had been in the throes of ‘the Anarchy’—a harrowing civil war.

At this stage, the prosecution will do well to point out that by no means of all John’s barons joined the rebellion. Many held back. England was having a tough time. This was not the moment to strike at the king. The rebels were largely based in the north of the country, but they soon brought the fight south, eventually seizing London.

As the country collapsed into mayhem, Archbishop Stephen Langton of Canterbury pitched in, shuttling between both sides to broker a truce.

The result of his efforts came on the 15th of June 1215, when all parties met at Runnymead. The resulting peace treaty took the form of a spidery document called the Articles of the Barons. Over the following few months, John’s chancery sealed 40 copies of the treaty and sent them out to the counties, although no one is quite sure if what he sent was the same as the original Runnymead document.

To Archbishop Langton’s frustration, it was not to be. The peace did not last. Within nine weeks, both king and barons had stuffed Langton’s document into the shredder and were on a war footing. Perhaps it had never been more than a stalling tactic for anyone. In any event, neither side ever did what they agreed in the document.

The country descended into another civil war.

Moving forward, the rest is well known. For the next 85 years, a succession of English kings periodically republished the Articles of the Barons, first changing its name to the Charter of Liberties, then splitting it into two: the Charter of the Forests and the Great Charter. What was left of it eventually entered the statute book in 1297.

During the process of multiple republications, the Articles suffered heavy surgery. Within a year of John’s death, the only clause with any constitutional clout was quickly ditched. It had subjected all John’s decisions to a council of 25 barons, who could declare war on him if they did not like his ideas. Without this clause, Magna Carta was toothless. It became a piece of Plantagenet royal window dressing, a proclamation of good intentions, which could then be systematically ignored.

The prosecution will be working away at the barons’ motives. They will dutifully point out that the privileges in Magna Carta relate only to the wealthy aristocracy of England, not the ordinary English person. It was never a charter for the good people of these isles, just extorted privileges for the nobility.

If the judges seem sympathetic to the defence’s claims of ‘democratic significance’, the prosecution will need to gently demonstrate how history has falsified what Magna Carta actually says. Not many people read it these days, but instead rely on word of mouth. Dangerous.

They can show that Magna Carta in fact contains no clauses guaranteeing every citizen trial by jury. Nor does it have anything to say about no taxation without representation. These are fictions. It was not a great day for women, either, as it loudly declares that a woman’s evidence in a murder trial is not to be believed unless it relates to her own husband. It is also not very supportive of Jewish moneylenders, who are deprived of their assets in various ways.

If the judges are feeling mischievous tonight, they might ask the defence why, if Magna Carta is so important, Parliament has repealed all but three of its 63 clauses? That does not sound like a document we venerate as a cornerstone of our democracy.

So, there is not a lot in the Articles of the Barons for the average English person, and the barons’ motives begin to look less altruistic, and more concerned with looking after themselves.

Perhaps the nail in the coffin of the barons’ story of democratic heroism, though, is the moment when they offered the crown of England to the future King Louis VIII of France. The young dauphin grabbed it hungrily, landed in Thanet, marched on London, and was proclaimed king at St Paul’s cathedral.

Louis went on to subdue half of England until, with spectacular timing, John played his trump card—by dying. John’s right hand man promptly declared John’s nine-year-old son, Henry, king. Seeing a chance to get in with a new English king, the barons did a volte-face, told Louis to sling his hook back to France, and flocked to their new best friend, the young Henry.

By this stage of the evening, some members of the audience will be starting to squirm a little in their seats. This, after all, is not how it was taught at school.

The sordid tale of calling in Louis of France should lead the prosecution nicely into explaining that the barons did not even establish some great new constitutional principle by hogtying a tyrannical ruler. The reality was that kings in the period ruled by consent. John’s problem was that he lost that consent. The affirmations in the Articles of the Barons that John would listen to the barons was merely restating age-old tradition.

In fact, Magna Carta was, in large part, a reheated version of the old coronation charters issued by John’s predecessors. It only became an instrument in the people-vs-king democracy debate when the English lawyer Sir Edward Coke dug it out in the early 1600s and claimed—entirely falsely, but it suited his anti-Stuart view—that it was an ancient constitutional document curtailing the power of kings. Over in the USA, lawyers drafting state constitutions were listening and receptive, and so the modern myth of Magna Carta was born.

Witnesses always spice up trials. Sadly, neither the prosecution nor the defence will be able to call on much star-quality independent testimony. Except one. Pope Innocent III.

Innocent would be a strong prosecution witness, even though he and John were not what you would call good friends. Innocent (a highly accomplished lawyer) had only just lifted a four-year sentence of excommunication on John for a typical medieval church-state power struggle. Nevertheless, when Innocent heard of the agreement at Runnymead, he was outraged, declaring that John was released from his sacred oaths under it as the treaty had been extorted by force and was therefore invalid. For good measure, he excommunicated the barons for their part in the scandal.

When the nominated judge comes to sum up tonight, he will doubtless explain the elements of the offence of treason. It was, in 1215, a common law offence, which did not become the subject of a statute until 1351, when it defined treason as killing the king, queen or heir; violating the queen, the king’s eldest daughter, or his eldest son’s wife; waging war on the king; adhering to the kings enemies; and killing various senior officials.

So, how will the judges decide? (Amusingly ironic that there will be no jury, n’est-ce pas?)

Assuming they stick to the law as opposed to following ‘Jerusalem’ with ‘I Vow to Thee my Country’, it looks rather bleak for the barons. They broke their feudal oaths of allegiance to John. They raised arms against their king. And they invited a Frenchman into London to take the throne.

If that is not treason, then I do not know what is.

I imagine a flunkey has already been delegated to hunt out three black caps.

Just in case.