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The bad king that prompted the Great Charter

How Robin Hood’s nemesis Prince John was the impetus behind the Magna Carta

In this excerpt from “A Christian Citizenship Guide” by André Schutten and Michael Wagner, we go way back to the time of the fictional Robin Hood and the very real Prince John to learn about the development of the Magna Carta, which has been described as “the greatest constitutional document of all times – the foundation of the freedom of the individual against the arbitrary authority of the despot.”

*****

Once upon a time there was a king named Richard the Lionheart. He became king of England in 1189. The time before this date, in English law, is known as “time immemorial.”1 Important legal and political developments occurred in this “time out of mind” and contributed to the development of the system of law and government that we have today.2 While important and formational, those developments can’t be covered in detail here. However, we must begin the story of our constitution somewhere, and so we will begin the day after time immemorial.

Most storybooks suggest that Richard the Lionheart was a good king, but that’s really quite debatable. All we know for sure is that his brother John was worse. Richard was a military man and mainly used England to fund his military exploits. He spent all but 6 months of his 10-year reign outside of England fighting various battles and pursuing various exploits. Once, on his way back to England, King Richard was kidnapped in a German territory and held for ransom. His brother John, temporarily ruling England in his place, not only refused to pay the ransom but offered the kidnappers money to keep his brother in custody! (You get a sense of John’s character, don’t you?) King Richard eventually returned to England but died shortly thereafter and, because he had no children, his younger brother John officially took the throne in the year 1199.

King John ruled as an absolute monarch, as had most of the kings preceding him. He was the ultimate law maker and the final judge of any legal dispute, and he set himself above the law. King John was also a particularly cruel and greedy king, which is where the tales of Robin Hood come in. His excessive taxation impoverished the people and united the factions opposed to him. All sectors of society rose up: the barons, church leadership, merchants, and commoners.

Signed not just twice or thrice

In early 1215, a group of 39 barons (out of a total of 197) openly revolted against the king, with the blessing of Stephen Langton, the archbishop of Canterbury. The barons successfully took over the city of London and more barons came to their side. By midyear, King John knew he had to negotiate. And so, on the 15th day of June, 1215, in an open meadow known as Runnymede, the barons and the king signed a truce negotiated and drafted by archbishop Langton. That truce is known as the Magna Carta, or the Great Charter, and it is quite possibly the most significant legal document in the history of English law. Lord Denning, one of the greatest English judges in history, once described the Magna Carta as “the greatest constitutional document of all times – the foundation of the freedom of the individual against the arbitrary authority of the despot.”3 Lord Chief Justice Bingham wrote that “the sealing of Magna Carta was an event that changed the constitutional landscape in [England] and, over time, the world.”4

The Magna Carta stands for the rule of law that all free men must be treated fairly and that no one is above the law, not even the king.5 By signing the Magna Carta, King John swore that he, and subsequent kings, would not be able to order the execution of his political enemies or any other citizens that displeased him without a proper criminal trial, heard by an impartial jury. Nor could he exact taxes from the people without first consulting with a council of barons (the very beginnings of a Parliament). And, often overlooked in modern political textbooks, the very first clause of the Magna Carta guaranteed the freedom and protection of the church.6 This was particularly important because King John wanted the power to appoint only those who agreed with him to be bishops of the church. The ecclesiastical leaders were known to speak out against the excesses and abuses of the king and often paid a steep price for doing so. King John’s father, King Henry II, infamously had archbishop Thomas Becket murdered inside Canterbury Cathedral in 1170 for standing up to the king on matters of church independence.

While most parts of the Magna Carta have since been replaced or repealed by subsequent statutes, the ancient Charter has enduring value. One clause still in force today is Clause 40 which states: “To no one will we sell, to no one will we deny or delay right or justice.” This clause is an expression of the principle of equality before the law, cemented into Canada’s Constitution in section 15(1) of the Charter of Rights and Freedoms 767 years later. The Canadian version reads, “Every individual is equal before and under the law and has the right to the equal protection of the law and equal benefit of the law without discrimination.”

If you’re wondering whether the Magna Carta was a particularly Christian document, the answer is, “Yes!” Not only does the Magna Carta open and close with declarations about the church’s independence from state interference (the beginnings of constitutional protections for religious freedom), but the author, archbishop Langton, was the leading churchman in all of England. His legal training in Europe was in canon law (or church law), and he applied this legal training and the scriptural principles of law to his drafting of the Magna Carta. He had “a scripturally informed conscience from which emerged truth’s uninhibited voice in Magna Carta [which] encourages proper and good government, resulting in increased justice.”7

Unfortunately, the signing of the Magna Carta didn’t restrain King John’s excesses all that long. Three months after signing it, the devious king had it annulled by the pope, and England was plunged into bloody civil war. But thankfully (for the English people anyway), King John died the next year from excessive diarrhea8 and the war came to an end.

The Magna Carta did not die with King John. John’s nine-year-old son Henry III became king and reigned for the next 56 years. With the advisors and supporters of the young king seeking stability and an end to the civil war, the Magna Carta was reinstated in 1216. And when Henry reached adulthood in 1227, he reissued the Magna Carta again as law, though a shorter version of it, in exchange for the barons’ consent to a new tax. In 1253, in exchange for another tax to fund his battles in France, King Henry III swore on pain of excommunication “and stinking in hell” to uphold the Magna Carta.9 A decade later he broke his oath, imposing yet another tax, which sparked a rebellion known as the Second Barons’ War. That war concluded in 1267 with a peace treaty that required King Henry III to reaffirm the Magna Carta yet again (if you’re counting, that’s the fourth time).10

The development of the Parliaments

King Henry III eventually died in 1272, and his son Edward I became king. Edward I (a.k.a. Edward Longshanks, because he was quite tall) did much good from a constitutional perspective, despite his depiction as a particularly cruel and cold-hearted English king in the Mel Gibson movie Braveheart. Edward I instituted a major review of political corruption and the abuse of power by citizens who held substantial power. In 1275, he passed The First Statute of Westminster to put on paper many of the existing laws in the country. He also worked to strengthen the policing system and restore public order.

One of King Edward’s biggest contributions is that he initiated the first official Parliaments in England, calling about 46 Parliaments in his reign. The first Parliament, in 1275, included members of the nobility, clergy, and the election of two county representatives and two representatives from the towns or cities to attend.11 Twenty years later, this form of representative parliament became standard practice, known as the Model Parliament, and all future Parliaments, including Canada’s, are based on it. The nobility and clergy make up the House of Lords (comparable to Canada’s Senate), and the elected representatives of counties or towns make up the House of the Commoners (or House of Commons). Importantly, before the king could increase taxes, he had to gain approval from Parliament.

Parliament was also a check on the absolute authority of the king in other respects. After another dispute over taxes between the king and Parliament between 1294 and 1297, the Magna Carta was amended and passed by Parliament as a statute for the first time and signed into law by King Edward I. This 1297 version of the Magna Carta is the officially recognized legal text in English law today and remains a part of the constitutions of Britain and Canada. Over the next one hundred years, Parliament continued to pass statutes (known later as the Six Statutes12) that clarified and expanded on sections of the Magna Carta, constantly working to restrain by law the otherwise unlimited power of the monarch. These statutes ensured that any action taken against a subject, whether taxes, fines, evictions, imprisonment, or execution, had to be done by trial or due process of the law and not at the whim of the king or his officials. Some of these constitutional principles developed in the 1300s13 are enshrined in the Canadian Charter of Rights and Freedoms.14

The passing of the Magna Carta as a statute in Parliament marks a significant shift in the understanding of the power and authority of kings. The kings from the Norman Conquest (William the Conqueror in 1066) until the establishment of Parliaments believed “they ruled by means of their force and will (vis et voluntas), not by the grace of God or legal right.”15 Most people accepted this at the time, but cultural developments shifted toward “the principle of the supremacy of law.”16 The law was no longer a tool used by the king to get his way; rather the king himself was bound by the law and under the law. This shift did not happen by accident. Many of the legal rules and procedures that developed around this time were adapted from canon law (church law) which the king’s lawyers would have studied in the universities, which were also run by the churches. In the canon law tradition, “the idea that the rule of law was antithetical to the rule of men lay dormant.”17

To read the rest of the story, order a copy of André Schutten and Michael Wagner’s “A Christian Citizenship Guide” available for a suggested donation of $25. Email [email protected] or visit arpacanada.ca/CitizenshipGuide. Watch a conversation between the two authors below.

Footnotes

1. “A time out of mind” or “time immemorial” refers to a point beyond which legal authorities believed it was impossible to speak with certainty. See Ryan Alford, Seven Absolute Rights: Recovering the Historical Foundations of Canada’s Rule of Law (McGill-Queen’s University Press, 2020), pp. 79-80.
2. This includes the Law Code developed by King Alfred the Great (r. 871-899) which incorporated the 10 commandments into the laws of England, the tradition of the coronation oaths of the Anglo-Saxon kings, the Norman Invasion of 1066 led by William the Conqueror and the Charter of liberties his son King Henry I (r. 1100-1135) instituted.
3. Danny Danziger & John Gillingham, 1215: The Year of the Magna Carta (London: Hodder and Stoughton, 2004), at p. 278.
4. Tom Bingham, The Rule of Law (Penguin Books, 2011), at p. 11.
5. Clause 39, still in force today, states: “No free man shall be arrested, or imprisoned, or deprived of his property, or outlawed, or exiled, or in any way destroyed, nor shall we go against him or send against him, unless by the legal judgment of his peers, or by the law of the land.” The only other clauses still in force today are Clause 1, which guarantees the freedom of the church, and clause 13 (renumbered clause 9 in Magna Carta, 1297), which guarantees the ancient liberties of the City of London.
6. The first clause reads in part: “First, that we have granted to God, and by this present Charter have confirmed for us and our heirs in perpetuity, that the English Church shall be free, and shall have its rights undiminished, and its liberties unimpaired.”
7. Brent Winters, Excellence of the Common Law (2008: self-published), p. 554, note 1383.
8. We are not 100% sure, but this may be why toilets are called “johns”. Some observe that, because King John was so despised, no king has ever been named after him. There has only ever been one King John, and he was bad enough.
9. Alford, Seven Absolute Rights, note 2, at p. 84
10. The Magna Carta was reconfirmed by various kings dozens of times, having last been confirmed by Henry VI in 1423. Ben Johnson, “The History of the Magna Carta,” Historic UK: The History and Heritage Accommodation Guide, online
11. Some might argue that King Edward’s father, King Henry III, instituted the first Parliaments. However, those earlier assemblies were more a collection of barons as advisors than a Parliament. Henry III did issue the first summons of parliamentum generalissimum to 24 barons to convene in January 1237, though only 18 attended. This evolved over time into the House of Lords. King Edward I was the first to have elected representatives from the towns and counties to attend. Those elected representatives evolved into the House of Commons.
12. See discussion on the Six Statutes in Alford, Seven Absolute Rights, note 2, at pp. 885-88.
13. These principles were developed by Parliament in the 1300s but are borrowed from canon law developed in the 1200s. For example, Pope Innocent III maintained that “a prince could not abolish the judicial process or ignore an action, because he was bound by natural law to render justice.” See Alford, Seven Absolute Rights, note 2, at p. 89.
14. These rights include the right not to be arbitrarily detained (s. 9 of the Charter), the right to a fair trial (s.11(d) of the Charter) and a trial by jury in serious offences (s.11(f) of the Charter).
15. Alford, Seven Absolute Rights, note 2, at p. 87. Alford further explains, “The expression of royal anger and ill will (ira et malevolentia) was integral to royal status. Vassals had to accept the possibility of their destruction at the king’s hands as a fact of life.”
16. Alford, Seven Absolute Rights, note 2, at p. 88.
17. Alford, Seven Absolute Rights, note 2, at p. 88.

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Politics

Chief Concern With Conversion Therapy Law

Drawing on history and imagination, André Schutten “interviews” former Conservative Prime Minister John Diefenbaker about Conservative Party failure to properly oppose the new legislation. ***** On December 1st, I watched in stunned disbelief as the Conservative Party of Canada proposed, and then unanimously supported, a motion to expedite the Liberal’s Bill C-4, an act to amend the criminal code in order to ban conversion therapy. In less than 30 seconds, a bill that will profoundly impact religious communities and members of the LGBTQ community, and threatens to undermine fundamental freedoms in disturbing ways, skipped over the entire Parliamentary procedure of the House of Commons: second reading and debate, Justice committee study with experts and stakeholders, report stage, final debate and the third reading vote. Six days later, the Senate – that supposed chamber of sober second thought – repeated the gimmick, with Conservative Senator Housakos, the acting leader of the opposition in the Senate – putting forward a motion for the unanimous consent of the Senate to pass the bill without any study or deliberation. To my knowledge, never has a piece of criminal legislation sailed through both houses of Parliament without any study whatsoever. In reflecting on the past week, one of my thoughts is how far the leadership of this conservative party has fallen from more principled days in opposition, like those of the Right Honourable John Diefenbaker. I could only imagine him angrily chastising the party he led from December 1956 to September 1967 for what they had done (or more accurately, what they had failed to do) in the House of Commons in the late afternoon of December 1st, 2021. So, I decided to posthumously interview the Leader of Her Majesty’s Loyal Opposition (1956-57, 1963-67) and former Prime Minister (1957-1963) to get his thoughts. ***** André Schutten: Mr. Diefenbaker, thank you so much for agreeing to this rather unconventional sort of interview. It’s not my regular habit to interview or consult the dead. The Right Honourable John Diefenbaker: You ought to be careful young man. King Saul didn’t fare so well after consulting the ghost of Samuel. But I really don’t mind being disturbed this time. I was rolling in my grave anyway. AS: I can only imagine. For the benefit of our readers, let me set the context. On Monday, Justice Minister David Lametti tabled Bill C-4 in the House of Commons. This bill proposes to criminalize a practice known as conversion therapy and expands on two previous bills from the prior Parliament (Bill C-8 and Bill C-6). Many critics of the bill, including feminist groups, doctors, religious leaders, and freedom advocates, have winsomely engaged in the debate over this issue for the past two years. The big issue with the bill is not whether to ban conversion therapy. All agree on that point. The issue turns on the definition: the definition of conversion therapy in the bill is very broad and goes well beyond capturing the coercive and tortuous practices that have been long discredited. Fix the definition, say the critics (and I am one of them), and you fix the bill. JD: Yes, I follow. But I overheard some of the Conservative Members of Parliament saying – a pathetic excuse, honestly – that they were only returning the same bill to the place in the Parliamentary proceedings that it was at when the election was called? AS: It is a little unnerving that the ghost of John Diefenbaker is listening in on Conservative caucus deliberations. JD: It would be good for them to know. Most of them would do well to consider the afterlife… AS: Indeed. But yes, the excuse that they were just returning the bill to where it was before the election is misleading for two reasons: first, this is a new Parliament, so any government that wants to retable a bill always starts over. But more importantly, this isn’t the same bill. The Liberal government fundamentally changed this bill, increasing the breadth of the ban, even banning spiritual counselling for consenting adults and banning “wait-and-see” approaches to gender dysphoria in young kids. This bill tramples freedom: freedom of expression, freedom of religion and conscience, freedom to pursue the medical or spiritual care one as one sees fit. JD: “Freedom includes the right to say what others may object to and resent... The essence of citizenship is to be tolerant of strong and provocative words.” You know, probably my most oft-quoted statement (and it’s a good one, if I may say so), is that, “I am a Canadian, free to speak without fear, free to worship in my own way, free to stand for what I think right, free to oppose what I believe wrong, or free to choose those who shall govern my country. This heritage of freedom I pledge to uphold for myself and all mankind.” AS: That’s a bold and visionary statement Mr. Diefenbaker. And I agree. Sadly, your party didn’t uphold that pledge this week. The topic was just too sensitive for some of them. Some of them tell me they were “taking too much heat.” JD: “You can't stand up for Canada with a banana for a backbone.” AS: JD: “We must vigilantly stand on guard within our own borders for human rights and fundamental freedoms which are our proud heritage......we cannot take for granted the continuance and maintenance of those rights and freedoms.” AS: I agree. I’m not sure the Opposition members understand just what they’ve done. I am most concerned about the kids and other Canadians struggling with deep, existential questions about who they are, how they should live, and how to square their deep feelings and questions of identity with their spiritual commitments. This bill bans access to one set of answers. But the Conservatives also sold out on that heritage of freedom. Look, I’m a constitutional lawyer and I’m telling you, this bill tromps all over freedom of religion for pastoral counsellors, freedom of conscience for medical professionals, freedom of expression for preachers and teachers, freedom of association for communities of faith, and – perhaps ironically – the equality rights of members of the LGBTQ+ community. JD: The what community? I always took a stand for an end to hyphenated Canadians. Have we replaced hyphens with acronyms? AS: Well, the LGBTQ+ community developed a little after your time, I guess. Anyway, for those who are gay or lesbian, or who are attracted to the same sex but want and choose to live according to their spiritual or religious convictions, they are prevented by the government (with the applause of the opposition) from accessing the kind of help and services that you or I would be able to access. JD: That is ridiculous. AS: What surprised or shocked me most was that the Opposition motion in support of the government bill was unanimous. Not one MP or Senator stood against it even though some 60 of those MPs had voted against a more mild version of the bill just six months earlier. Judging by the reaction on the floor, there were a small number of that caucus who were coerced to keep their mouth shut or lose their job, despite that same morning their leader having pledged a “free vote” on this issue. A few good men and women seem to have been threatened by their fellow Conservatives to keep quiet. JD: “One moment is a cathedral, at another time there is no words to describe it when it ceases, for short periods of time, to have any regard for the proprieties that constitute not only Parliament, but its tradition. I've seen it in all its greatness. I have inwardly wept over it when it is degraded.” AS: I am inwardly weeping this week. I’m guessing a few good MPs are as well. I see this, first and foremost, as a failure of leadership. But let’s talk about the role of the Opposition in Parliament some more. JD: “The Opposition that fulfills its functions makes as important a contribution to the preservation of the Parliamentary system as does the government of the day.” AS: Well, what is that function then? Can you expand on that? JD: “If Parliament is to be preserved as a living institution, His Majesty's Loyal Opposition…” AS: Actually, it’s Her Majesty’s Loyal Opposition now… JD: Okay. Well, I was quoting from the speech I gave in October of 1949 to the Empire Club of Canada. And at that time the Head of State was King George VI. And so I said, “If Parliament is to be preserved as a living institution, His Majesty's Loyal Opposition must fearlessly perform its functions. When it properly discharges them the preservation of our freedom is assured. The reading of history proves that freedom always dies when criticism ends. It upholds and maintains the rights of minorities against majorities. It must be vigilant against oppression and unjust invasions by the Cabinet of the rights of the people. … It finds fault; it suggests amendments; it asks questions and elicits information; it arouses, educates and molds public opinion by voice and vote. It must scrutinize every action by the government and in doing so prevents the short-cuts through democratic procedure that governments like to make.” AS: I love that line: “Freedom always dies when criticism ends”. Brilliant. And I completely agree with how you ended that: the Opposition “prevents the short-cuts through democratic procedure that governments like to make.” Well said. Sadly, the Opposition this week did the exact opposite. They gave the government a short-cut! JD: “Parliament is a place where in full discussion freedom is preserved, where one side advances arguments and the other examines them and where decisions are arrived at after passing through the crucible of public discussion. The Opposition that discharges its responsibilities becomes the responsible outlet of intelligent criticism. Indeed, most, if not all, authorities on constitutional government agree that Britain's freedom from civil war since the development of the party system is due in the main to the fact that the Opposition has provided an outlet and a safety-valve for opposition.” AS: You used the phrase “intelligent criticism.” I like that. And I saw that in the last Parliament with Bill C-6 (the previous iteration of this bill). I saw 62 MPs speak winsomely, thoughtfully, carefully, on a sensitive issue, giving intelligent criticism. Parliament can criminalize tortuous, coercive conversion therapy without going too far, without violating fundamental freedoms. But then this week, due to fatigue, laziness, cowardice, I’m not sure what, but they caved. JD: “he experience of history has been that only a strong and fearless Opposition can assure preservation of our fundamental freedoms and of the rights of the individual against executive and bureaucratic invasions of those rights. Quintin Hogg, an outstanding member of the British Parliament has given the answer in these words: ‘Countries cannot be fully free until they have an organized Opposition. It is not a long step from the absence of an organized Opposition to a complete dictatorship.’” AS: So true. So, would you say that the Opposition must oppose in each and every instance? JD: “The Opposition cannot oppose without reason. Its alternative policies must be responsible and practicable for it has a responsibility to the King to provide the alternative government to the one in power. Without an Opposition, decision by discussion would end and be supplanted by virtual dictatorship for governments tend to prefer rule by order-in-council to Parliament and bureaucrats prefer to be uncontrolled by Parliament or the courts.” AS: This is definitely a big issue that I’ve been tracking especially in the last two years. The executive and bureaucratic branch is almost wholly untethered by the legislative branch. We sometimes say we have “responsible government” but I feel like it’s in name only. JD: “The responsibility of the Opposition has been greatly increased, for in the last few years the Cabinets in the various Parliaments of the British Commonwealth have recovered most of the powers lost two hundred years ago. It must not be forgotten that Parliament gave up many of its rights during the days of war and allowed fundamental freedoms to be abrogated. These rights were given up as security for victory. These freedoms must be restored and only with a strong Opposition is restoration certain.” AS: History is repeating itself! Parliament (and the provincial legislatures) have allowed fundamental freedoms to be abrogated in many ways in the face of a pandemic, and these freedoms were given up as security for safety. But here too, the criticism from the opposition in any province or in Parliament seems only that the government has not abrogated freedoms enough. JD: “It is human nature for governments to find the Opposition distasteful and the longer governments are in power the more they become convinced that they govern by Divine Right and that their decisions are infallible. Only a strong Opposition can prevent a Cabinet with a commanding majority from ruling without regard to the rights of minorities.” AS: Tell me about it. We have drifted a long way in the last few decades Mr. Diefenbaker. JD: “The absence of a strong Opposition means a one party state. A one party state means an all-powerful Cabinet. It is as true in the 20th century as it was in the 19th century when Lord Acton wrote, ‘All power corrupts; absolute power corrupts absolutely.’” AS: Actually, he said, “Power tends to corrupt, and absolute power corrupts absolutely.” JD: Watch your sass, son. AS: Sorry sir. Please go on. JD: “There have been tremendous changes in government in the last fifty years but it is nonetheless true now as it was at the beginning of this century that only with an organized and effective Opposition can democracy be preserved. Canada's freedom and destiny is in the custody of the Opposition no less than it is of the Government. Government has become so complex and its ramifications so extensive that no matter how industrious a member of Parliament may be, it is impossible to master all the problems that come before Parliament and more so in that there are not available to the Opposition the trained civil servants who are at the disposal of the government at all times.” AS: This is a really good point. I remember meeting once with the official opposition’s justice critic. He told me he had two policy staffers. That’s it. His counterpart on the government side has 3,000 lawyers at his disposal within the Justice Department. The justice critic was outgunned and appreciated any extra advice I could offer for that reason alone. JD: “In my opinion the Opposition will not be able to discharge its duty unless it has available to it trained and outstanding research experts whose salaries will be paid by the state.” AS: I guess, in the meantime, this is where groups like my employer ARPA Canada come in? JD: Yep. That’s exactly right. The more you can help and the more your community can support you, the more impact for good you will have. AS: Thank you. I’ll make sure our constituents hear that too. They have been incredibly supportive in the past decade, I must say. JD: “While Parliament has its short-comings it remains the bulwark of our freedom. … Parliament must continue to be the custodian of freedom. To that end it must constantly change its procedure to meet the changing needs of a modern world but must be changeless in its concept and tradition. Parliament will only remain the guardian of freedom and our free institutions so long as His Majesty's Loyal Opposition is fully responsible and effective in the discharge of its functions.” AS: That’s a great note to end this interview on, Mr. Diefenbaker. JD: You should really get your readers to read my whole speech on the role of the opposition. It was quite a good speech, if I do say so myself. AS: It is an excellent speech and should be mandatory reading in every grade 10 civics class and a prerequisite for anyone to serve as a Member of Parliament. I’ll post a link to the speech Mr. Diefenbaker. JD: Post a what? AS: Never mind. Thank you so much for sharing your wisdom and your vision for the role of the opposition. And thank you for being a principled leader in your time, one to whom others who follow in your footsteps ought to aspire. May you rest in peace. André Schutten is General Legal Counsel with the Association for Reformed Political Action (ARPA) Canada since 2011. This article first appeared in Convivium.ca, “an online space that brings together citizens of differing convictions and religious confessions to contend for the role of faith in our common life.” It is reprinted here with their gracious permission. ...