by Martin Odoni

Has anyone else noticed how the British seem to be Americanising their own history?

This question is not asked from an insular perspective. I find it no more irritating that history is altered to make it more digestible to an American audience than I would find it if it was made more digestible to, say, a Taiwanese audience. The parameter is unimportant. My objection is that the altered form, by definition, will always be wrong.

This odd process seemed to be sparked back around 2006 by the movie version of V For Vendetta, which I have discussed more than once on this blog. The comic book character the film was based on, the eponymous V, was invented in the 1980s by Alan Moore to be a bloody anarchist inspired by the Gunpowder Plotter, Guy Fawkes. On celluloid, V was instead shown to be a wise-but-violent democrat, using his campaign for freedom as a justification for avenging terrible crimes committed against himself in the past. This sort of hard-hittin’, bomb-some-democracy-into-’em, freedom-lover perspective fitted more neatly with the way heroes have usually been portrayed in Hollywood movies, especially Westerns, since time-immemorial. Moore may have been unimpressed by the retooling of the character, but a lot of Americans in particular lapped it up, and there followed a substantial international mania about Guy Fawkes – an historical figure little-known outside the UK or Ireland up to that point. Even today, many left-leaning political movements will wear replicas of V’s Guy Fawkes mask when campaigning or taking direct action.

“V For Vendetta” Tokyo Premiere – Red Carpet at Tokyo International forum in Tokyo, Japan. (Photo by JIL Studio/FilmMagic)

Popcorn history v real history

For those of us in the UK who have a yen for historical accuracy – including myself – this phenomenon was interesting but uncomfortable. It was not just because V was being twisted into something he had not quite been in the original source material, but also because the film’s flashbacks to Fawkes’ time were wildly altered, and therefore misportrayed. His famous arrest in the vault below Parliament was much over-dramatised into a swashbuckling duel with the palace guards, where in reality, Fawkes initially tried to bluff his way with the guards by using a false name, before surrendering without a fight. And the nature and motivations of Fawkes himself were completely changed; the film portrayed him as a freedom-fighting visionary, bravely and single-handedly trying to free the good people of England from Monarchical tyranny. In the real world, the historical Fawkes and his co-conspirators were religious terrorists. Understandably angry and frustrated at years of anti-Catholic mistreatment under the reign of Queen Elizabeth I, they had hoped that the accession of her cousin, James VI of Scotland to the English throne would lead to a formal toleration of Catholics. Instead, James endorsed Elizabeth’s “anti-Recusancy” laws. Fawkes therefore wanted to destroy and exterminate the Protestant Establishment of James’ English court, and to make the country answerable to the Pope once more, under a new Monarch who could be forced to accept Catholic ways. Fawkes was not even their leader of the conspiracy, let alone a visionary; the leader was Robert Catesby. What none of the plotters was noticeably interested in was social liberty.

Now, given the film was released only about five years after the 9/11 terrorist attacks, it would have been difficult for the US market to tolerate a hero explicitly based on a religious terrorist. Doubly problematic in the US South, where the puritan-descended fanatics of the Bible Belt would be even more disgusted at a hero based on a Catholic terrorist. So the film just airbrushed these religious details out, and V became something more secular, an entity akin to Dirty Harry, but with a posh voice and bewildering dress sense.

A historical look at ahistorical films

It should be emphasised that the Fawkes mania had rather dissipated by about 2012. It should also be emphasised that there is nothing new whatever in films pertaining to discuss UK history but telling a largely fictitious version of the past. Movies such as Cromwell (1970), In The Name Of The Father (1992), and Braveheart (1995), as just a small sampling of the transgressors, have all been so enormously embroidered by the telling of events that never happened, that a genuine case could be made for their respective production teams being locked away for fraud.

But the difference is that all of these films have received considerable and loud pushback to varying degrees down the decades, whereas objections to V For Vendetta‘s historical falsehoods was remarkably muted. The families of the Guildford Four, especially the relatives of Gerry Conlon, all expressed loud feelings of betrayal when they saw how In The Name Of The Father had grossly misrepresented a wide range of events detailed in Conlon’s original book (especially the way the film indicated that Conlon had been incarcerated for over ten years in the same jail cell as his father, Giuseppe, whereas in reality they were seldom even kept in the same prison for more than a few days).

Mel Gibson’s famous desire to show that the English are the bad guys of history might work better if his films on the subject contained fewer blatant lies; if his point was valid, the truth would surely be enough?

Equally, Braveheart, in misportraying The Wars of Scottish Independence, has become so notorious for its inaccuracies and absurdities, that the film tends to be mocked more than admired a quarter of a century on from its cinematic release. Some of the historical foul-ups in the mainly-fantasy plot seem almost idiotic on the part of the scriptwriters e.g. Scottish warriors fighting in kilts roughly three centuries before belted plaid was even invented, The Battle Of Stirling Bridge being portrayed in a field with no bridge or river in it, Prince Edward being married to a fully-grown French Princess when she would have been only 3 years old, Scotland being occupied by the English even when William Wallace was still a child, the implication that “a kingdom of our own” would somehow be something completely new to the Scots in the 14th century etc. Wallace himself, it could be argued, has received similar Americanising treatment in his portrayal by Australian-American Mel Gibson, whose memorably awful faux-Scottish accent is the least of its failings. Scottish historians have made clear for centuries that Wallace as a rebel leader was at least as authoritarian and bloodthirsty as Edward I of England; Wallace had a pitiless tendency to have fellow Scotsmen hanged for refusing to join his insurrectionist army. He was also a lowland gentryman who would have looked down upon the ordinary peasantry of Scotland, not the Highland farmer whom the peasantry regarded as ‘one o’ their ain‘, as in the film. Again, the negative traits of Wallace appear unable to survive contact with celluloid. Meanwhile, the film’s portrayal of Edward Prince of Wales as a weakling and a bisexual would have been accurate were it not for the way it (perhaps inadvertently) presents the weakness as being a result of the sexuality, which dates the whole production in a dreadfully homophobic manner. Many a Scot who expressed jingoistic love for Braveheart when they first saw it in the cinema in 1995 now tends to regard it with quiet embarrassment.

Constitutional pining

But the current trend I have noticed in Americanised British history does not appear to be rooted in films particularly. Instead, it seems to be rooted in an odd desire on the part of some Britons to have a singular Constitution to worship. Imported television shows from the USA often give the (highly-questionable) impression that Americans all prostrate themselves at the metaphorical feet of the US Constitution, and many a Briton seems to pine for a single, consolidated document of rights of their own, to which they can point. The popular idea that the UK Constitution is ‘unwritten’ is an urban myth, but its contents are spread very broadly across dozens of legal texts and books, in a way that makes it rather difficult to carry a single copy around with you. The single-volume, four-page document of the Founding Fathers, with “We the people” written in gigantic letters as an opener, makes laws and human rights look a wonderfully simple subject in comparison.

The opening of the US Constitution, complete with oversized lettering to open, as though trying to cajole Americans into supporting it.

I get the impression that this is a hangover from more primitive times of ‘idol-worship’. Why get quite so precious over what is just a yellowed, fading sheet of paper? What is important is the ideas the document conveys, not the document itself.

Article 61? Seriously?

But this desperation to think Britain should have its own consolidated Constitution has led to a strange cult on the Internet trying to twist the past in such a way as to make such a Constitution exist. I call these people Article 61 dreamers. They see the ancient document agreed in 1215 at Runnymede between King John and his barons, called the Magna Carta, as Britain’s nearest equivalent to the US Constitution, and want it treated with the same reverence. One clause in the Charter that these dreamers like to invoke, because they imagine it gives them all manner of, not just rights, but powers, is Article 61.

A minor author called Samantha Jane Brown appears to be one of the most prominent of these dreamers. She claims on Twitter and on her secondary website that the Great Charter of 1215 gives the people of England the legal right everlasting to rebel violently against the reigning Monarch if they believe that they are being subjected by said Monarch’s Government to unjust demands. It is noticeable that the Article 61 movement has become particularly active over the course of 2020 in direct response to the Coronavirus. A lot of the dreamers seem to be petty, selfish “I’ll-do-what-I-feel-like-doing-and-to-blazes-with-everybody-else!” libertarians. They wish to treat the pandemic as Somebody Else’s Problem, and consider lockdowns and precautions against the virus’ spread to be ‘tyrannical’ curtailments of their liberties. Hence the need for a document detailing those liberties as a legal defence against any repercussions for failing to observe the rules.

And lo and behold, here be Magna Carta, the original British Constitution, whose rights listed therein are set in stone for all time? Er… right?

Article 61 did not even survive the first year of Magna Carta‘s fluctuating existence, let alone the first eight centuries.

Um… no, not right. Not right at all. A multi-faceted misunderstanding of what Magna Carta is supposed to be.

Magna Carta, a document misunderstood in so many ways

The first misunderstanding of Magna Carta is one almost everybody makes before they have had a chance to look at it with their own eyes. It is not, and was never meant to be, a National Constitution, even a Bill of Rights, as such. It was really just a business deal agreed between King John and the rebellious English Baronial class to support him against an invasion by the armies of the Dauphin of France. We need to keep in mind the context of the time the Charter was first written. It was a heavily despotic era, when the old ‘Angevin Empire’ of which England had been a central hub for several generations, had only just collapsed. Feudalism was still the dominant system of Government across Europe, and it was a far, far more top-down, primitive form of administration than anything we can easily picture today. The very idea of “rights for the ordinary people” was fairly close to unthinkable; the reason why John was in a power struggle with his barons was not that he was mistreating the peasantry. It was that he had dared to treat the aristocracy almost as badly. The barons therefore wanted a firm, hand-written guarantee that there were activities John had been guilty of that he would desist from doing, before they agreed to defend his crown from the French.

The barons’ main objections had been arbitrary imprisonments of aristocrats, the ‘disappearance’ (almost certainly murder) of the King’s nephew, who was a potential rival claimant to the throne, and above all, the imposition of extraordinarily high taxes at the whim of the crown. Therefore, to study the text of Magna Carta is to an extent an exercise in sitting through a lot of over-privileged, whiny belly-aching about how much money the landed classes had been compelled to pay to the King.

John might have been able to get away with all of this, as indeed his father Henry II had been able to do throughout his reign, had he only established a successful and stable Government. Instead, John was the man principally responsible for the loss of the Angevin territories. Between England, south Wales, east Ireland, and more than half of France, Henry had held together the biggest Empire Europe had seen since the time of the Romans. But after Henry’s death, it all fell apart. John had reigned only five years when he lost the Duchy of Normandy in 1204, and within years, all his territories in France bar Gascony and Poitou had been re-conquered by the French King. French armies were soon menacing the English coast, and the English barons were in open revolt. Magna Carta was simply John’s attempt to placate the barons, not to establish a new and progressive definition of the Rights of Man. Hence why the Charter was worded to tailor specifically to the barons’ wishes.

A Charter repealed

This leads on to the second great misunderstanding of the Magna Carta, which is the notion that the version agreed in 1215 is still in effect today. It is not. It was revoked by Pope Innocent III just a few weeks later. John had formally made England a Papal dependency (“fiefdom”) in 1214, acknowledging Innocent as his Feudal overlord. This meant the powers of the King over England were being exercised by John only on the Pope’s behalf, and so any restriction on those powers was a restriction on the Pope’s powers too. So of course, without hesitation, Innocent had it annulled. This triggered a fresh uprising by the barons.

A new version was drawn up the next year, following John’s death and the accession of his young son Henry III to the throne. But – and this is the third great misunderstanding of the Magna Carta – the barons had redrafted the Charter with a number of clauses removed to make it less offensive to Papal authorities. One of the articles that was removed from the new version, and was also absent from a re-drafted version issued in 1217, and from the final version re-issued in 1225, was the aforementioned Article 61.

Article 61 of the Magna Carta, in short, has not been recognised in the law in any way since 1215, and was only ever recognised in English Common Law for a few weeks. (Even that is debatable, as no version of Magna Carta was officially added to the statute books until 1297.)

It has also never been a part of Scottish Civil Law.

Article 61 was never a licence to kill

Misunderstandings do not stop there. Another common one is the previously-mentioned idea that Article 61 gave the English people the legal right to rebel violently against ‘unfair’ Government demands. But it did not really say that. It was worded as follows, at the King’s first-person-plural perspective; –

“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.”

What this meant was that a council of twenty-five barons would be appointed, and people could petition them to register a protest against any of the King’s commands that they thought were unreasonable. If at least four of the barons agreed with the complaint, the protest would be issued. If no redress was attempted by the King within forty days, the matter would be referred to the whole council of twenty-five to rule whether force should be used.

This is very, very different from saying that people can face no legal repercussions for trying to topple the state any time they get an instruction from the Government that they do not like. Article 61, even if it were still in effect, would give the right to petition a council of barons for protection against royal excess. But the council could agree or disagree that the royal command was excessive at their own discretion, and what is more, even if they agreed, they could still rule against the use of force. Moreover, the use of the royal pronoun We throughout the Charter makes the document explicitly a guard against royal over-steps, not against Government over-steps. A Prime Minister, say, a position that of course did not exist back in the Thirteenth Century, is therefore not bound by it. Restrictions on the powers of a Prime Minister are set by different rules altogether introduced from the eighteenth century onwards.

All of this is before we even pause to consider that there is no ‘council of barons’ overseeing the English state in this way. Arguably, there has never been one doing so since the Second Barons’ War of 1258-1267.

Most of Magna Carta was repealed long ago

Indeed – and this is yet another misunderstanding of Magna Carta – the overwhelming majority of its statutes, not just Article 61, have been repealed in recent centuries, chiefly in the nineteenth century. Today, a mere four of the Charter’s clauses are still in effect in law. All the repealed clauses are either so obsolete that they rule on things that no longer even exist, or have been superseded by other laws. The famous development credited (wrongly) to clauses 38-40 of the Charter, of the right to a fair trial before the state can be allowed to incarcerate or otherwise punish an individual, were effectively taken over by various versions of the Habeas Corpus Acts over later centuries.

Anti-Semitic sentiments

It could even be argued that we should be glad that most parts of the Charter are dead. Several clauses, for instance, are borderline-racist. Consider Articles 10 and 11. The language is anti-Semitic in their underlying assumptions; –

“If anyone has taken a loan from Jews, great or small, and dies before the debt is paid, the debt is not to incur interest for as long as the heir is under age, whoever he may hold from. And if the debt comes into our hands, we will take only the principal recorded in the charter.” – Article 10.

“And if anyone dies, and owes a debt to Jews, his wife is to have her dower and pay nothing towards that debt. And if there are surviving children of the deceased who are under age, their needs are to be provided for them in proportion to the dead man’s tenement, and the debt is to be paid from the residue, saving the service owed to the lords. Debts owed to others besides Jews are to be dealt with in like manner.” – Article 11.

One might give the authors of the text the benefit of the doubt, were it not for that final sentence. If all debts are supposed to be treated in the same manner, why do the two clauses specify Jews as the creditors? And while it is true that, due to religious laws of the time, a great many lenders in the era were Jewish, it smacks of lazy assumption that the terms ‘Jew’ and ‘lender’ are almost treated as interchangeable. Certainly any text in the modern day worded in such a fashion would be accused of crude and tasteless racial stereotyping.

A dog with no bite

Magna Carta is therefore now something of a short-tempered old watchdog with plenty of bark, but no real teeth. Its significance today is largely symbolic, as a political instrument, not a legal one. It was the earliest known document in British feudal history that established the idea that even a King is not above the law, that his whim alone maketh not the law. That in itself was hugely important in the context of the early Plantagenet Monarchs, who ruled in a time when despotism was considered a natural and even desirable way to govern a country, due to the vast impracticalities of the pre-machine Age. To make the first psychological step away from such an assumption is why Magna Carta should be respected and even treasured as a major development and precedent in the advancement of human rights. But the advancement of human rights was not the intention behind it as such. The barons were only interested in advancing their own rights. And despite it setting the foundation for many laws and institutions that followed – including Parliament and representative Government – Magna Carta has little direct significance anymore. It is largely a very obsolete relic of Medieval law.

In summary, Magna Carta may have been very important and visionary in its time, but people looking to it today for rights or powers will, if they bother to check closely, be disappointed. It still protects the freedom of the English church from political interference, the civic liberties of The City Of London (which perhaps should also be repealed given the unaccountable corruption in the financial sector), and freemen from persecution by the Crown. But the rest is gone. It is only by, as I suggested earlier, attempting to change British history – almost attempting to ‘hurl’ invented facts into the past – into something more American that we can pretend the Charter stands as unchallenged as the US Constitution.

Would that even be a good thing, even if it were true? Given the enormous logjam that always develops in Congress when there are attempts to alter the US Constitution, allowing the retention of simplistic, dangerous and thoroughly outdated gun laws, just for instance, maybe the desire to treat pieces of paper as sacred and unchallengeable, instead of just important, is unfortunate? Seeing scraps of paper as magical or infallible is foolish. What is written on them is more important, and some times even the best written ideas need revising.

How strange that people like the Article 61 dreamers think that laws are set in stone forever, but that the history that created them is mutable. Surely it is the other way around?