The moment is one of those defining moments of English history: up there in ‘name recognition’ with the battles of Hastings and Waterloo, comfortably exceeding such seismic events as the Glorious Revolution for sheer memorability. But what exactly had happened? It wasn’t obvious then and isn’t so now.
The answer, on the face of it, is not a lot. There are very few sweeping political statements in the charter. Most of its articles are yawn-inducingly dull, and virtually every clause has been repealed. We no longer rejoice at the freedoms given us by Clause 23:
No town or person shall be forced to build bridges over rivers.
Clause 31 doesn’t cause the Queen too many sleepless nights:
Neither we nor any royal official will take wood for our castle…without the consent of the owner.
Clause 35 is now mostly honoured in its breach:
There shall be a standard width of dyed cloth, russett, and haberject, namely two ells within the selvedges.
And the de Athée family has probably recovered from the humiliation of Clause 50:
We will remove completely from their offices the kinsmen of Gerard de Athée…namely, Engelard of Cigogne, Peter, Guy, and Andrew of Chanceaux, Guy of Cigogne, Geoffrey of Martigny with his brothers, Philip Mark with his brothers and his nephew Geoffrey, and the whole brood of the same.
What’s more, there was nothing especially unusual about the idea of a written charter between king and nobles. Medieval states across Europe lived in constant tension between the power of the centre and the power of the warlord-barons. As a result, kings were constantly drawing up agreements with their nobles. They had done so on the Continent and had done so in England, where precedent stretched back at least to Henry I.
This particular charter seemed doomed from the start. John himself had only ever used the document as a kind of stalling tactic. His aim, still, was to repudiate the charter and slaughter the rebels. The rebels too hardly treated the treaty as sacrosanct, reneging instantly on their agreement to hand over London. For both sides, Magna Carta was a diversion from the real business, which would have to be settled at sword point. Sure enough, less than three months after Magna Carta, king and barons were at war again. The charter seemed to be dead and buried.
It was nothing of the sort. The same realpolitik that had created the treaty in the first place brought it back from the dead. In 1216, a French army was on English soil, chasing John northwards through the country. The French seemed certain to succeed, but then John did the most brilliant thing of his career so far: he died. His son was speedily proclaimed Henry III, and the regency council reissued Magna Carta in order to rally support. The reissue may have been little more than a PR stunt, but if so it was one with stunning results. Backing for the French invaders flooded away. The French were forced to go back home. England had been spared a second conquest.
For all this cynicism, the charter nevertheless remained about more than realpolitik and effective PR. No other medieval charter, in England or elsewhere, had ever contained such sweeping freedoms for the ordinary man. The very document had been addressed not only to nobles, in the manner of most such charters, but to all free men. Here in Article 1 comes the ringing statement from a king to his people:
…We have also granted to all the free men of Our realm, for Ourselves and Our heirs forever, all the liberties written below, to have and to hold by them and their heirs from Us and Our heirs.
It’s hard to know quite why the men negotiating Magna Carta had chosen to include such language. The rebel barons didn’t care a fig about the liberties of the man on the Clapham horse-and-cart. Most of the liberties mentioned had little enough to do with him anyway. But some did, two in particular. Articles 39 and 40 run as follows:
39: No free man shall be taken or imprisoned or disseised [unlawfully dispossessed of land or property] or outlawed or exiled or in any way ruined, nor will we go or send against him, except by the lawful judgement of his peers or by the law of the land.
40: To no one will we sell, to no one deny or delay right or justice.
At the time, these clauses meant less than now appears. For one thing, they applied to free men only, and many Englishmen were villeins bound to the manor and therefore not technically free. Furthermore, the two clauses initially had less significance than they came to accrue. Article 39 was not intended to guarantee trial by jury—it just came to mean that. Article 40 was not meant to prevent indefinite imprisonment without trial—but it too came to mean that. One of the most striking things about the agreement is precisely how it came to take on a deeper significance with every passing century.
Arguably, though, the most startling innovation of Magna Carta lies in the largely forgotten Article 61. Almost the last article in the whole agreement, this clause set up a panel of twenty-five barons who would, in effect, supervise the king’s adherence to the agreement. If the king was found to fail then:
…those five-and-twenty barons shall, together with the community of the whole land, distrain and distress us in all possible ways, namely, by seizing our castles, lands, possessions, and in any other way they can, until redress has been obtained as they deem fit, saving harmless our own person, and the persons of our queen and children;…
In the political climate of the age, this proposal was simply nuts: a recipe for civil war. But, in the most dramatic way conceivable, it drove home the fact that the king was subject to the law. His ‘castles, lands, possessions’ were at stake if he broke the rules. This was a shockingly novel position. Under Roman law—the emerging law of continental Europe—the king was the rule-maker. It was no more possible for a king to bind himself than it was for the sun to scorch itself. In England, by contrast, the law was the law of the land, the common law, the semi-mythical law of Edward the Confessor and his Saxon predecessors. If the law had been there for centuries before the king and would be there for centuries after, then how could the king possibly claim a greater place? Clause 61 was dropped from every subsequent reissue of the agreement, but its spirit persisted and grew.
Virtually all modern states today either practice the rule of law or pretend that they do. It’s perhaps the most revered political ideal in the world, more elemental than representative democracy, almost as ancient an ideal as political thought itself. But while the ancient Greeks may have originated the theory, the actual, effective practice was to come very much later. If you’re looking for the practical, rather than theoretical, origin of the rule of law, then there you have it, in Article 61 of Magna Carta. For the first time in the post-Roman world, a king had become a subject in his own kingdom, servant to the law and the ‘community of the whole land’. It was an example that first England, then the rest of the world, would come to respect and emulate; a Runnymede acorn whose roots now cover the globe.
A HANDFUL OF FEATHERS
Theft is illegal. It always has been. If you nick something and get caught, you will be prosecuted under the Theft Act of 1968, which says in the very first sentence of the very first paragraph:
A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.
Easy, huh? But what if you stole something in 1967, the year before the act was passed? Well, prior to the 1968 act, there was the Larceny Act of 1916. That act didn’t have one neat way to categorize theft. In fact, you don’t need to get very far into its definitions before the eyes start to goggle:
A person steals who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof; provided that a person may be guilty of stealing any such thing notwithstanding that he has lawful possession thereof, if, being a bailee or part owner thereof, he fraudulently converts the same to his own use or the use of any person other than the owner:
The expression ‘takes’ includes obtain
ing the possession (a) by any trick; (b) by intimidation; (c) under a mistake on the part of the owner with knowledge on the part of the taker that possession has been so obtained; (d) by finding, where at the time of the finding the finder believes that the owner can be discovered by taking reasonable steps; The expression ‘carries away’ includes any removal of anything from the place which it occupies, but in the case of a thing attached, only if it has been completely detached;…
All this just seems weirdly complex—‘completely detached’ from reality, indeed—and so it was. The contorted definitions arose, however, because the 1916 act was trying to bring order not simply to previous acts of parliament, but to the entire area covered by the common law. And what was the common law? Quite simply this: it was the laws of the land as judges had found and interpreted them. Edwardian judges looked at the precedents laid down by Victorian judges, who in turn had looked at the precedents set by Georgian judges, who in turn had looked at the precedents set by their predecessors, who in their turn…
Although the unbroken chain of precedent does not run as far back as the courts of the twelfth century and Henry II, the mode of deciding cases has always looked to the past. Questions of fact were decided by juries or by ordeal; questions of law always relied on a kind of collective memory of the unwritten law, the laws and customs of the land. In effect, those judges of Henry’s court determined that theft was illegal because theft had been illegal for as long as anyone could remember. As with theft, so with most other offences. It wouldn’t even be true to say that the origins of English law are lost in the mists of time. That implies that if we only knew more, we’d be able to locate a source. And we wouldn’t. No such unitary source has ever existed. Little wonder that by the time of the 1916 Larceny Act, the law of theft had become a tangled jungle almost too dense to pierce.
Because we’re used to it, the oddness of all this is easy to miss. A modern parliament is a huge law-passing machine, and the cases adjudicated by today’s courts are constantly bumping up against the rules laid down by some act of parliament. Yet this modern rule-making is a very recent phenomenon. When did parliament first outlaw theft in its most general form? In 1300?; 1500?; some time in the seventeenth century? Not a bit of it. The first really general attempt to outlaw theft was in that Theft Act of 1968—everything else had just been an attempt to get old common law practices and the mish-mash of parliamentary statutes into some sort of order.
Even now, there are giant areas of law where common, not statute, law rules entirely. I’m on the point of selling the house I’m now writing in. When my buyer and I sign the contract of sale, that contract will be binding on us both, and enforceable through the courts. That does not mean, however, that I’m protected by some act of parliament. I’m not. There simply is no basic law of contract on the statute books. It doesn’t exist, and most likely never will. My fundamental protection is that when Henry’s royal judges came to systematize the law, they thought that contracts should be honoured and made sure that they were.
No one would ever choose to build from scratch a legal system that looks like ours, any more than you’d choose to build a skyscraper by starting with a henhouse and then just improvising. Britain, however, is a country where very few of our most important institutions have been built from scratch. They tend to be ramshackle affairs: cobbled together, patched, altered, repaired, made to last another few years. At the heart of most institutional skyscrapers in Britain—the law, parliament, the monarchy—you’ll find splintering timbers and a handful of feathers. No one in their right minds would set out to do things like this. But—as long as you’re British—it’s an approach that works.
FROM THE SAME MUD
There’s a joke doing the rounds which, in one of its versions, goes something like this. In a recent survey, those living in England/Wales/Scotland were asked whether they thought of themselves primarily as British or as English/Welsh/Scots. An overwhelming 68 per cent of respondents replied, ‘Polish.’
Five hundred years ago, similar jokes wouldn’t have involved the answer ‘Polish’, but they might well have named the Welsh, or Cornish, or Irish, or any other regional grouping. Then as now, migration was feared. Then as now, migrants were seen (by some people, some of the time) as bearers of disease, crime and immorality; speakers of funny-sounding English; thieves of jobs and women; scroungers too idle to work. Inevitably also, then as now, there were people keen to make a bob or two by exploiting these fears.
One such person was a Kentish tax-collector, Thomas Harman, who in 1566 published his Caveat or Warning for Common Cursetors, vulgarly called Vagabonds. The book, which seems to have been something of a publishing sensation, categorized the scams, frauds and deceptions of these wandering migrants. Among many other types, Harman identified:
ABRAM MEN (or Abraham men, Bethlem men, Poor Toms)
Those feigning madness and claiming to have been resident in Bedlam.
PALLIARDS (or Clapperdudgeons)
Those begging alms, but selling what they’re given. Often Irish with false passports, or Welshmen using herbs to raise wounds on their legs, thus counterfeiting infirmity.
UPRIGHT MEN
Skilled professional thieves and beggars, though both able-bodied and experienced at a trade or in service.
JARKMAN (or Patrico)
Forger of licences.
WHIPJACKS
Those pretending to be shipwrecked sailors on their way home.
PRIGGERS OR PRANCERS
Horse thieves.
DUMMERERS
Beggars pretending deafness.
COUNTERFEIT CRANKS
Those pretending to suffer from the ‘falling sickness’. Often use false testimonials from Shropshire.
Harman’s categorization of women was particularly complex. Kinchin morts were young female rogues, dells virginal ones, doxies those who had had their virginity taken by an upright man. Walking morts were unmarried female rogues, autem morts their married (but still promiscuous) equivalents. Bawdy baskets were female pedlars of any marital status.
Most of the concerns that Harman was keenest to fan into life are recognizable to us today. Foreignness was much feared. Egyptians or gypsies were probably the scariest outsiders, the Irish next, then perhaps the Welsh. Harman gives a lot of prominence to accusations of crime, fraudulent claims on charity, and immorality. The unreliability of identity documents strikes a chord today, as does the deep unease of the settled at the presence of the mobile in their midst. Harman also sounds another note, however, so disconcertingly contemporary that we hardly expect to find it in the mid-sixteenth century. The opening sentence of the book’s dedication reads:
As of auncient and long tyme there hath bene, and is now at this present many good godly profitable lawes and actes made and set forth in this most noble and flourishing realme, for the reliefe, succour, comfort and sustenacion of the pore, nedy, impotent and miserable creatures, beeing and inhabiting in all partes of the same.
Harman (who never used one word when half a dozen would do) goes on to make the point that the rogues outlined in the book are preying on these ‘good godly’ laws to the detriment of everyone else. The upright men, for instance, know ‘Sommerset shyre, Wyll shyre, Barke shyre, Oxforde shyre, Harforde shyre, Myddilsex, Essex, Suffolke, Northfolke, Sussex, Surrye, and Kent as the chiefest and best shyres of relief’, and ‘have so good lyking in their lewde lecherous loyteringe’ for these places that they’ll brave any possible punishment to remain. At its core, in fact, Harman’s book is an attack on benefit fraud.
Eh? We tend to think of benefit fraud as being very much a by-product of the twentieth-century welfare state. To the extent that there were any measures at all for the relief of the poor in centuries before that, we think of them as so utterly awful—all gruel, whippings and the workhouse—that the idea that anyone might seek out such relief seems far fetched to the point of loopy. Not so. Although Harman (like his modern-day descendants) is hardly a reliable guid
e to the social scene he claims to describe, he was absolutely right to suggest that the Tudor welfare state was very much alive and kicking.
Its roots ran deep. Back in the thirteenth century, the state played little or no role in ensuring social welfare, but the Church most certainly did. Everyone was required to pay one tenth of their income to the Church, of which one third was—at least in theory—reserved for the relief of the poor. For additional requirements, such as Christian burial of the indigent, additional collections were held. The arrangements mixed compulsion with volunteerism, backed by a powerful medieval Christian ideology of charitable work that would find its reward in the afterlife. Different localities found different ways to tackle the problem, but whatever the methods, broadly speaking, they worked. One historian has suggested that no century until the wealthy twentieth century was kinder to its poor.
Changing times, however, brought changing problems. As the pace of change in agriculture picked up, displacing the landless and swelling the towns, it became increasingly clear that large swaths of the poor had been made poor through acts of man, not God, and that the older methods of poor relief were no longer sufficient. The time-honoured ideology of the societas christiana, the Christian society, wasn’t replaced, but it became buttressed by an emphasis on civitas, the responsibility of civil society to make good its own failures. In 1536, a new poor relief bill was brought before parliament. Although parliament had considered and passed numerous poor relief measures in the past, this one was newly radical in its scope. The bill acknowledged that poverty might have causes other than ‘visitation of God’ and the pauper’s ‘own default’. It aimed at relieving poverty of every kind. A national council would provide wages, food and medical care for the able unemployed, who would be given employment on public works, mostly transport related. The whole project would be financed by the king and his wealthier subjects, with further voluntary contributions from everyone in every parish.
This Little Britain Page 6
