Tuesday, October 30, 2007

Monarchy, constitutions and republicanism, Part 1 - Magna Carta

Magna Carta is a misunderstood document. It wasn't some sort of ringing declaration of rights. It was much more practical than that, rooted in the politics and events of the time, so it needs to be placed in context. Let's step back a moment.

Much of the first half of the twelfth century was pretty disorganised. Central rule was weak, there was a dispute over the throne and barons were pretty much left alone to their own devices, or courted by one of the rivals for the crown. Then in 1154 Henry II became king and tidied things up; at the start of his reign there was still trial by ordeal, by the end there was trial by jury (though not as we know it). He had a conflict with the church over legal jurisdiction (the Thomas A Becket stuff), but got on reasonably well with his barons - who recognised a force of nature when they saw one. Things did start to fall apart a bit towards the end of his reign. An opportunistic (and very great) French King conspired with Henry's sons, who rebelled and Henry, it was said, died of a broken heart in 1189.

Then there was Richard the Lionheart. The barons liked Richard - because he buggered off. He left them alone. Apart from the taxes his crusades and campaigns needed, they were not much affected by the king. They didn't much like the taxes, or some of the methods used to raise them, something we'll see again later, but the great thing was that he wasn't there. This ensured he would be fondly remembered.

He only reigned for a decade though, and was succeeded by his brother John, who didn't bugger off and, worse, tried to be like his father Henry. He travelled a lot (and lost his baggage in The Wash in the process, including the crown jewels and the imperial regalia of Germany, if anyone fancies getting the metal detector out) and generally got in the way.

But the worst thing was that he liked the French. Well, he was French really, as had been Henry. In fact, few of the nobility spoke English at the time. What annoyed the English barons was that John had French favourites - men from continental France who he listened to in preference to the English barons and who, it has been suggested[1], he used as strong arm men. This was a dispute about whose counsel the king listened to. Later in the thirteenth century a similar dispute would lead to a red hot poker being pushed up the bottom of the king, but in the early twelve hundreds things didn't get this drastic.

Whose counsel the king listened to was absolutely vital at the time. Magna Carta confirmed lots of rights - of the church, of fisheries and so on - but they weren't really the point. Or rather they weren't this point.

Clause 50 of Magna Carta states:

We will utterly remove from their offices the relatives of Gérard d'Athée, Engelard de Cigogne, Peter and Guy and Andrew de Chanceaux, Guy de Cigogne, Geoffrey de Martigny and his brothers, Philip Marc and his brothers and his nephew Geoffrey, together with all their adherents, so that henceforth they shall have no office in England.
Or, as The Sun would put it, Hop Off You Frogs.

I wanted to make this point because I want to trace the development of the English Parliament, and this is where it started, I think. I know there were councils, Things and so forth in Anglo Saxon and Viking custom (don't forget the Danelaw), but this is where the English Parliament began. Even so, I want to make a small digression, because there are some uncanny parallels between England of 1215 and the Britain, in fact specifically the England, of today.

If you read Magna Carta, you'll see clauses like this one:
6. Heirs shall be married without disparagement; yet so that, before the marriage is contracted, it shall be announced to the blood-relatives of the said heir.
Without disparagement means not to someone of a lower social class. Snobbishness, hey? Not entirely, that was a blow against stealth taxation. Kings had developed a habit of marrying off heiresses to the highest bidder, even if they were in trade (a merchant, perhaps), and trousering the bid.

Or this one:
12. Scutage or aid shall be levied in our kingdom only by the common counsel of our kingdom, except for ransoming our body, for knighting our eldest son, and for once marrying our eldest daughter; and for these [purposes] only a reasonable aid shall be taken. The same provision shall hold with regard to the aids of the city of London.
Scutage (shield money) was originally a payment made in lieu of military service, but had become another form of stealth taxation, levied when no service was due.

This isn't about John, but he had been campaigning in France, and losing French lands, for more than a decade by the time of the Great Charter. His campaigns cost money and he had increasingly been resorting to disguised taxation - it really was stealth taxation - to raise the necessary money. He did this by abusing all the little ways he had of getting a buck, from marriages, deaths:
2. If any one of our earls or barons or other men holding of us in chief dies, and if when he dies his heir is of full age and owes relief, [that heir] shall have his inheritance for the ancient relief: namely, the heir or heirs of an earl £100 for the whole barony of an earl; the heir or heirs of a baron £100 for a whole barony; the heir or heirs of a knight 100s, at most for a whole knight's fee. And let whoever owes less give less, according to the ancient custom of fiefs.
Taxing trade and resources:
13. And the city of London shall have all its ancient liberties and free customs, both by land and by water. Besides we will and grant that all the other cities, boroughs, towns, and ports shall have all their liberties and free customs.
And so on. Ring any bells?

What's more, he had been infringing on the ancient liberties of barons, the church, and even freemen:
20. A freeman shall be amerced for a small offence only according to the degree of the offence; and for a grave offence he shall be amerced according to the gravity of the offence, saving his contenement. And a merchant shall be amerced in the same way, saving his merchandise; and a villein in the same way, saving his wainage — should they fall into our mercy. And none of the aforesaid amercements shall be imposed except by the oaths of good men from the neighbourhood.
In other words, habeas corpus.

High regular taxes, exploitative stealth taxes and the erosion of ancient liberties: It's fair to say, I think, that New Labour is not so "new" after all.

One further aside. The rebellion against John manifested itself in 1214 when the counties of East Anglia - Norfolk, Suffolk, Essex and Hertfordshire, together with Yorkshire and Lincolnshire, refused to pay scutage for overseas campaigns on the, completely spurious, grounds that they had no obligation for overseas service (they did). I suspect we will need to look to the bloody-minded English of those counties again.

But to summarise, Magna Carta was a reigning in of the infringement of liberties and of liberty. It was a detailed prohibition of more than a dozen specific forms of stealth taxation. But in a constitutional sense, it was the barons telling the King: "OK, if you're actually going to be here rather than overseas campaigning, and if you're going to have an effective government that really does run a legal system and raise taxes, then buddy, you're going to have to talk to us".

Or, as they put it (remember, this is written from the point of view of the King, because he was the one issuing the Charter):
61. Since moreover for [the love of] God, for the improvement of our kingdom, and for the better allayment of the conflict that has arisen between us and our barons, we have granted all these [liberties] aforesaid, wishing them to enjoy those [liberties] by full and firm establishment forever, we have made and granted them the following security: namely, that the barons shall elect twenty-five barons of the kingdom, whomsoever they please, who to the best of their ability should observe, hold, and cause to be observed the peace and liberties that we have granted to them and have confirmed by this our present charter; so that, specifically, if we or our justiciar or our bailiffs or any of our ministers are in any respect delinquent toward any one or trangress any article of the peace or the security, and if the delinquency is shown to four barons of the aforesaid twenty-five barons, those four barons shall come to us, or to our justiciar if we are out of the kingdom, to explain to us the wrong, asking that without delay we cause this wrong to be redressed. And if within a period of forty days, counted from the time that notification is made to us, or to our justiciar if we are out of the kingdom, we do not redress the wrong, or, if we are out of the kingdom, our justiciar does not redress it, the four barons aforesaid shall refer that case to the rest of the twenty-five barons, and those twenty-five barons, together with the community of the entire country, shall distress and injure us in all ways possible — namely, by capturing our castles, lands, and possessions and in all ways that they can — until they secure redress according to their own decision, saving our person and [the person] of our queen and [the persons] of our children. And when redress has been made, they shall be obedient to us as they were before. And any one in the land who wishes shall swear that, for carrying out the aforesaid matters, he will obey the commands of the twenty-five barons aforesaid and that he, with his men, will injure us to the best of his ability; and we publicly and freely give licence of [thus] swearing to every one who wishes to do so, and to no one will we ever prohibit [such] swearing. Moreover, all those of the land who of themselves and by their own free will are unwilling to take the oath for the twenty-five barons, with them to distress and injure us, we will by our mandate cause to swear [such an oath] as aforesaid. And if any one of the twenty-five barons dies or departs from the land, or in any other way is prevented from carrying out these aforesaid matters, the rest of the twenty-five barons aforesaid shall by their own decision choose another in his place, who is to be sworn in the same way as the others. Moreover, in all the matters entrusted to those twenty-five barons for execution, if perchance the same twenty-five are present and disagree among themselves in some respect, or if certain of those summoned are unwilling or unable to be present, that which the majority of those present may provide or command shall be held as settled and established, just as if all twenty-five had agreed to it. And the aforesaid twenty-five shall swear that they will faithfully observe all that has been set forth above. And neither of ourself nor through others will we procure from any one anything whereby any of these concessions and liberties may be revoked or diminished; and should anything of the sort be procured, it shall be null and void, and we will never make use of it either of ourself or through others.

Twenty five years later, they were calling that a Parliament.

[1] King John, W L Warren, 2nd edition 1990 Methuen paperback, p.272

Part 2 - Parliament and the radical tradition.


Devil's Kitchen said...


Nice analysis and you are correct that much of Magna Carta has been rendered irrlevent or otherwise superceded.

In my solution, we might well write our own Constitution, I suppose.


Peter Risdon said...

In my solution, we might well write our own Constitution, I suppose.

I'm with you on that, DK.

Peter Risdon said...

By the way, I don't think Magna Carta is irrelevant. In fact, I had hoped to show how mit was addressing some of the very concerns about government we have today.