Against the Magna Carta
By As some American eggheads say, there could not have been 1787 without 1215. The legacy of Philadelphia starts at Runnymede. Put more bluntly, the U.S. Constitution would not exist without the Magna Carta that was signed by King John of England.
America’s political culture, ideals, and most of its founding stock come from the British Isles. As such, arguing that American documents have an English lineage is entirely sensible. America’s Bill of Rights is based on and not much different from the Bill of Rights that English Protestants ratified in 1689 following the Glorious Revolution.
There a few documents in the world that receive such undue reverence as the Magna Carta. Conservative MP Daniel Hannan has called the signing of the document a “secular miracle”, the logic being that it was the Magna Carta that enshrined limited government in the English, then British soul. Hannan and others sincerely believe that the 1215 document is the root and origin of modern Anglo governance, with its protection of individual freedom, liberties, etc. Let us show that this is bunk.
Historical Context
The Magna Carta, which can be read in translation here, was signed by a king so loathed that no subsequent English monarch took his name. Although King John‘s story has been colored over the centuries by writers who hated him, it is true that John was a tyrant and a bumbler who lost most of the Angevin holdings in France to King Philip II of the House of Capet. Even worse, insofar as the Anglo-Norman barons of England were concerned, John was not the legitimate king because he ruled in the stead of the brave Richard the Lion-heart, who spent years languishing in an Austrian jail.
Beginning in 1215, the same year that John affixed his emblem to the Magna Carta, the Anglo-Norman barons of England’s north and east rose up in rebellion. Their main grievances were over John’s misrule in England and Normandy as well as his steep taxes that were raised in order to fight new campaigns in France. This rebellion would become known as the First Barons’ War, an unnecessary conflict that further weakened the monarchy in England.
The Magna Carta had already been signed by the time the war broke out, so it neither prevented the war nor ended it. In fact, haggling over the Magna Carta following its signing led both parties to be dissatisfied with the document, ultimately putting all on a war footing. The “secular miracle” was ineffectual insofar as internal English politics were concerned. The main reason for this is that King John had the document annulled not long after signing it by a decree from Pope Innocent III. The Pope and the King agreed that the document had been signed under coercion. The Pope even went further by excommunicating those barons who had forced John’s hand. Even in its own time, the Magna Carta meant nothing to either the English monarch or the barons who fought him.
The Document Itself
Those who claim that the Magna Carta is the origin of Anglo-American freedom often point to one line in particular:
“No Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will we not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.”
This passage is often cited as the foundation of the notion that all governments should be held to the rule of law. This is a strange assertion, given that no English or British court case has been decided based on either this passage or the Magna Carta generally, and that the Romans had a legacy of protecting legal authority long prior. The Magna Carta is therefore of no legal importance. It is merely a symbolic gesture that signals the king’s willingness to compromise on his authority. When the English sovereign faced a much greater revolt in the 17th century, many Parliamentarians echoed the work of barrister Sir Edward Coke, who often invoked the Magna Carta during his injunctions against outlawry, unlawful arrests, and other formerly common practices of medieval (and Catholic) England.
Another criticism of the Magna Carta from the perspective of the Catholic or hard Protestant Right is the fact that the document makes God a mere observer in English affairs, not the creator and ultimate judge of all human actions:
“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. That we wish this so to be observed, appears from the fact that of our own free will, before the outbreak of the present dispute between us and our barons, we granted and confirmed by charter the freedom of the Church’s elections – a right reckoned to be of the greatest necessity and importance to it – and caused this to be confirmed by Pope Innocent III. This freedom we shall observe ourselves, and desire to be observed in good faith by our heirs in perpetuity.”
This moment then could be seen as the first stirrings of a legally encoded separation of church and state (an idea that is un-Christian down to its vary marrow) even though, as said before, the Magna Carta is ultimately a useless document. More to the point, legal codices and other documents have shown to be poor restraints on the state. Formerly, a Pope could excommunicate kings (and even that was not always effective) because the Pope in Rome was seen as having power in both the secular and ethereal realms. Nowadays, thanks to the Enlightenment, rulers are only constrained by contracts that can be changed thanks to the democratic and chaotic process of voting. Amendments are poor substitutes for excommunication; thus these weak constraints have empowered bureaucrats and managers at the cost of weakening sovereigns.
Third, the Magna Carta’s constant talk of “freemen” is meant to only apply to those Anglo-Norman barons who stood so threateningly beside King John as this document was signed. As G. K. Chesterton famously quipped, “the poor object to being governed badly, while the rich object to being governed at all.” This pithy statement is certainly apt when viewing the situation in England in the early 13th century. After all, the raising of taxes is one of the few duties of a king, and from the perspective of the Angevin crown, John was raising taxes in order to defend those lands that were his by birthright in France.
King John’s taxes did constitute a threat to baronial privilege, however. For a legitimate monarch, taxes are rent charged to tenants by the private property owner. In the case of King John, he enacted import and export taxes and pseudo-income taxes, most of which were only applicable to England’s barons. Those barons who could not or would not pay their taxes or debts saw their lands given to the crown. While the barons were wrong to draft the Magna Carta, King John was equally wrong to enact unfair taxes that went against precedent.
While the Magna Carta does speak out against the illegal seizure of non-English land (“If we have deprived or dispossessed any Welshmen of land, liberties, or anything else in England or in Wales, without the lawful judgment of their equals, these are at once to be returned to them”), it certainly does not articulate anything close to equal rights between the Celtic and Germanic subjects of the British Isles. Indeed, as discussed on Episode 77 of the Myth of the 20th Century podcast, the Magna Carta enshrined and justified the popular business of buying and selling English, Scottish, Irish, and Welsh slaves to foreign and domestic markets. Similarly, the passage in the Magna Carta absolving Christians from debts to Jews (“If anyone who has borrowed a sum of money from Jews dies before the debt has been repaid, his heir shall pay no interest on the debt for so long as he remains under age, irrespective of whom holds his lands. If such a debt falls into the hands of the Crown, it will take nothing except the principal sum specified in the bond.”) is really nothing less than an a way for debt-ridden nobles to cover their own hides after several failed crusades in the Holy Land.
It must also be mentioned that the “security clause” of the Magna Carta (Clause 61) does not offer up protection from unjust land theft, but rather tried to enshrine the rights of those twenty-five barons present at Runnymede:
“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. Any man who so desires may take an oath to obey the commands of the twenty-five barons for the achievement of these ends, and to join with them in assailing us to the utmost of his power.”
This clause gave the English public the right to forgo oaths of allegiance to the king, and in its opening passage (“SINCE WE HAVE GRANTED ALL THESE THINGS for God, for the better ordering of our kingdom, and to allay the discord that has arisen between us and our barons”) Clause 61 places man ahead of God in terms of the creation and structuring of civil society. Taken together, Clause 61 might be the most egregious in the Magna Carta for undermining the Christian nature of monarchy and the rights of the English sovereign. Historian Wilfred Warren argued in his book King John that Clause 61 made civil war inevitable in England because it so drastically upset the balance of power in the country in favor of the barons.
Other clauses, such as Clause 53 (“…when we have hitherto had this by virtue of a ‘fee’ held of us for knight’s service by a third party; and with abbeys founded in another person’s ‘fee’, in which the lord of the ‘fee’ claims to own a right. On our return from the Crusade, or if we abandon it, we will at once do full justice to complaints about these matters”) and Clause 55 (“All fines that have been given to us unjustly and against the law of the land, and all fines that we have exacted unjustly, shall be entirely remitted or the matter decided by a majority judgment of the twenty-five barons referred to below in the clause for securing the peace”) gave the barons the right to default on their debts and the right to refuse to pay certain fees. Many of these fees, including taxes on land, had been a part of English Common Law prior to the Norman Conquest. Clause 50 (“We will remove completely from their offices the kinsmen of Gerard de Athée, and in future they shall hold no offices in England. The people in question are Engelard de Cigogné, Peter, Guy, and Andrew de Chanceaux, Guy de Cigogné, Geoffrey de Martigny and his brothers, Philip Marc and his brothers, with Geoffrey his nephew, and all their followers”) lays bare the true nature of the Magna Carta—it was a document conjured up by aggrieved nobles looking for a way to increase their power against their rivals.
If the Magna Carta had been enacted in 1215, then England would have become a baronial oligarchy that could easily manipulate any sovereign. The Magna Carta would have also offset the possible dismantling of the Norman state back to its Anglo-Saxon origins (more on this later), for the barons would have seen the clear benefits of dominating both London and their estates in the country. Had the Magna Carta become law in 13th century England, it would have further centralized the English state at the cost of weakening the sovereign and legitimate monarch.
By the 17th century, the process of England’s pull away from the sovereign was completed by the Glorious Revolution. The Glorious Revolution of 1688 is one of the greatest tragedies in the history of the English-speaking peoples. Not only did it remove the legitimate heirs to the throne—the Catholic and Norman-Scot Stuart family—but it threw the British North American colonies into chaos. After all, the signing of a new English constitution suddenly rendered the American charters null and void. While the men and women of Massachusetts originally cheered the revolution and the destruction of the Dominion of New England, the revolution threw the legitimacy of colonial governments into question. The mother country responded by taking a more active approach in North American affairs, a result that quickly rubbed the New England and Virginia colonists the wrong way, eventually contributing to the American Revolution.
An Anglo Alternative
Again, it bears repeating that the original Magna Carta was never ratified or nor put into law. The reissued Magna Carta of 1217, for instance, added that all castles built during the First Barons’ War would be destroyed. Signed by King Henry III and sealed by the papal legate Guala, the 1217 document is also noteworthy for the fact that French Prince Louis resigned all claims to any land formerly held in England.
King Henry reissued the document eight years later in 1225. This version of the document, known as the Great Charter of 1225, became the definitive version of the Magna Carta. The purpose for its issuance was Henry’s desire to raise new taxes—the very same issue that got his predecessor, King John, in so much trouble. The Great Charter also removed any wording or suggestions that the original document had been written under coercion. This probably seemed pleasant to England’s barons, except that the 1225 document placed a tax on the fifteenth part of their movable property.
The final incarnation of the original Magna Carta occurred in 1258 with the Provisions of Oxford. This document, which was also signed by King Henry and saw promises of financial aid to the monarch from the barons, is actually considered the first true constitution in English history. After a military blunder in Sicily, Henry groveled before Parliament, which forced the king to agree to a 24-man royal commission which included at least twelve men handpicked by the barons themselves. The Provisions of Oxford officially made England’s barons part of the royal power structure, and for twelve years, Henry was under the control of a Council of Fifteen along with chief ministers, a Justiciar, and a Chancellor.
While the absolutism of the 17th century, which is itself a perversion of the kingly ideal based in early Enlightenment and Protestant thinking, caused the growth of sharp anti-monarchical feeling in the British Isles, it was the Magna Carta and its offspring that set in motion the weakening of the sovereign’s authority. Instead of one ruler constrained by God, natural law, and inherited privileges, 13th century England concocted a witch’s brew that reeked of proto-democratic oligarchy. King John and Henry III, because of their poor military adventures, relinquished their power to petty barons and the court mandarins in London. England, and indeed the entire West, have never fully recovered.
The Stuarts had an alternative to absolutism that was based in the ancient soil of England. According to historian and sociologist Spencer Heath, “heathen anarchism” was the state of affairs in England prior to the Norman Conquest of 1066. Now called “anarcho-feudalism”, this state of relations emphasized the Anglo-Saxon tradition of decentralized power, chieftains, and property. Take for instance the Anglo-Saxon custom of paying voluntary rent and/or customs to local lords. Prior to 1066 and the creation of the “Norman yoke”, Anglo-Saxon England did not have a centralized system of tax collection. Once taxation became official government policy, feudalism, which up until that point had been voluntary, became coercive. It was also the Norman Domesday Book which codified centralized authority, especially the authority that the king had over his nobles. It could be argued that had England retained Anglo-Saxon style governance, then the Magna Carta would never have been written.
Sadly, Norman rule in England brought about greater state centralization and coercion, and yet, the Magna Carta, which nominally tried to reign in King John and subsequent monarchs, only created greater synergy between the nobility and the monarch. The Magna Carta left unanswered the question: who has greater power, the nobles or the king? Such a vexing question would plague England for centuries and lead to yet another barons’ war. While the Anglo-Saxon system was far from fully voluntary (land tenure regulations and compulsive military service did exist), its more decentralized nature and the nature of tax collection in pre-Norman England was much closer to the spirit of liberty than either the Magna Carta or subsequent English laws written by either the monarch or Parliament.
Conclusion
The reverence given to the Magna Carta must be cast aside. The document meant nothing just weeks after it was written, and it means little now. Kings have a right to rule, so long as they rule in accordance with natural law. By restricting the king’s prerogative by instituting written constitutions, societies set themselves up for oligarchic exploitation. During the Second Barons’ War, Anglo-Norman knight Simon de Montfort captured London and the surrounding area. One of the first things he did was to create a parliament, subsequently known as Simon de Montfort’s Parliament. Because of this, Baron Montfort is often called the founder of the House of Commons, which means that this baron kick-started the engine that would decapitate King Charles I and dismantle any meaningful power invested in the English (later British) crown.
The Magna Carta was also invoked by the Protestant anarchists known as the Levellers during their resistance to both King Charles I and his Long Parliament. Ironically, when the Parliamentarian warlord Oliver Cromwell took power in London, he dispensed with the notion that he would abide by the 13th century document. Cromwell famously called the Magna Carta the “Magna Farta.”
Would one rather be ruled by a roster of barons or a single king? For libertarians and reactionaries, the answer is quite obvious. The Magna Carta was not some “secular miracle”; rather, it was a failed document that spawned other failed documents.
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