Saturday, October 2, 2010

Magnifying Magna Carta

Part I: The "Great Charter"
in Historical Context and the
Right to Rebel Against Tyrants

Do you remember 9th grade U.S. History? If so, chances are you recall hearing about the Magna Carta of 1215 and how it supposedly set the stage for the legal protection of individual liberties and helped to inspire other documents including the United States Constitution. You probably recall hearing your teacher relate to you the tales of the oppressive and vindictive King John, who, along with fighting his supposed nemesis Robin Hood (another myth for another day) had established a quasi-tyrannical reign over his English subjects. Long story short, the English people became fed up with John and the lack of protected individual liberties and demanded that a charter be created in which the king would recognize certain basic rights to be protected by law. Thus, the Magna Carta was born.

On the surface, this sounds like an inspiring, even patriotic tale, right? It's not hard to see how such a take on history has caught on, especially here in the "land of the free", where the descendants of Christian English settlers (with the obvious exception of the African slaves, Native Americans, and a countless host of other immigrants ) proudly carried the ideas of the Magna Carta to the "New World" and augmented it with a charter of their own: the U.S. Constitution, a.k.a. Magna Carta 2.0.

But alas, as is often the case, pop culture's take on history is usually more the stuff of Robin Hood and invisible Masonic treasure maps on the back of founding documents that it becomes more desirable than the actual truth. It is for this reason that the Magna Carta has become saturated with tales of what we want it to be rather than what it actually was. The truth: Magna Carta did not protect much of anything and was in fact rejected by King John, the Pope and most Englishmen. It was never a binding legal document, nor did it serve to protect indivudual liberties. Despite this fact, Magna Carta did serve one important function: it helped to justify the rebellion to tyranny.

It is true that Magna Carta is one of many important links in the chain that eventually became constitutional law in the Western world. However, it would be a major mistake to make the claim that Magna Carta was the starting point or even the most important component to eventual constitutional rule. For example, the English Charter of Liberties (1100) which preceded Magna Carta by almost 100 years, made some of the same claims, as did many other charters of Medieval Europe.

What is important to remember here, and is often difficult for us in the present day who have lived with guaranteed legal rights to understand, is that these charters were not legislation, but rather a promise from the King that was neither binding in any legal sense nor a requirement of his position. In the Medieval world kings ruled by Divine Right, meaning that God himself had granted them almost complete authority. Individual liberties were nice and certainly people were to be treated with some level of respect, but ultimate authority rested with the king. Defiance to his rule was defiance to God himself. As the Apostle Paul states in Romans chapter 13:
1Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God.

2 Whosoever therefore resisteth the power, resisteth the ordinance of God: and they that resist shall receive to themselves damnation.

3 For rulers are not a terror to good works, but to the evil. Wilt thou then not be afraid of the power? do that which is good, and thou shalt have praise of the same:

4 For he is the minister of God to thee for good. But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil.

5 Wherefore ye must needs be subject, not only for wrath, but also for conscience sake.

6 For for this cause pay ye tribute also: for they are God's ministers, attending continually upon this very thing.

7 Render therefore to all their dues: tribute to whom tribute is due; custom to whom custom; fear to whom fear; honour to whom honour.
Obviously this was a convenient justification for nobility to assert their rights to Divine Right kingship. Clothing authority in the robes of the will of God made resistance to leadership not only illegal but sinful. One could find himself in the dungeons of both earth and hell for defying a king.

With that said, the concept of ultimate authority resting with the king did not mean that rebellion was a thing of the past. Quite the contrary. For example, every English king since William the Conqueror was forced to deal with the threat of rebellion by powerful barons who questioned the king's right to lead. However, these rebellions were usually supported by another noble who laid the same claim to Divine Right authority as the King, thus the nobles were able to justify their actions. One could not be found blameless before God for supporting who he thought to be God's chosen man. During the reign of King John, however, there were no nobles present who could lay claim to the throne of England.

But why did these barons want to rebel at all? What was King John doing that was so terribly offensive? To understand these questions we must first understand the fundamental system of social organization in Medieval Europe: feudalism. In the simplest of terms, feudalism was a system in which land and goods were distributed at the will of the king. The fundamental belief was that the king was the rightful owner of all the land, but he allowed powerful nobles and barons to keep and cultivate certain portions of it. In turn, these barons allowed peasants to till portions of that land and keep a small amount of what they produced for themselves. In essence, it was a quasi-"trickle down" system where the higher your social status, the more the king let you have.

During the reign of King John, England was in an impoverished state. Recent wars with Phillip of France had exhausted the king's coffers and forced him to increase taxation upon the barons of the land, who, in turn, increased taxes on the peasants. As a result, the nobles of England became overrun with taxation to such a level that rebellion became a viable option. The lack of a legitimate royal replacement for John complicated issues, which is why the nobles decided on a charter stating their rights. However, this charter, according to historian Austin Lane Pool, was "mere subterfuge since what they really wanted was to replace the king with their chosen man."

Faced with mounting pressure, King John acquiesced to the desires of the nobles, but did so only as a political move. In reality he had no desire to honor the charter and in fact had already laid the groundwork for its demise. As historian David Carpenter points out:
John sealed Magna Carta at Runnymede on 15 June, 1215 with little intention of keeping to it...sometime in July John asked the pope to annul the charter. When the papal letter arrived in England at the end of September, the country was already at war. The rebels realized that John could never be restrained by Magna Carta. The only solution was his replacement...And with the pope's official rejection of Magna Carta the rebels had little faith in their newfound charter.
The fact that John rejected Magna Carta may be surprising to some but again, we must remember that it was not a legal document. As God's chosen leader on earth, John was not bound to follow any document issued by man. The Pope's agreement in this matter helped to support that very fact. For the barons to even issue such a document was, in the minds of John's supporters, blasphemy to God. As a result, civil war erupted as the nobles chose to not only reject their king but also defy God's biblical admonition to, "Let every soul be subject unto the higher powers." In what became known as the First Barons' War, Lord Robert Fitzwalter (who many have associated with the Robin Hood legends) took the reigns of leadership and directed his fellow barons to established a codified set of "guidelines" for the king to follow. In what became known as The Articles of the Barons, Fitzwalter and his fellow barons provided a list of basic rights (an early bill of rights of sorts) which, in their minds, limited the scope of the king's authority and guaranteed certain basic individual rights. Here are a couple examples:
Article six
The king shall not grant any baron the right to take an aid from his free men, except for ransoming his person, for making his eldest son a knight and for once marrying his eldest daughter, and this he shall do by a reasonable aid.

Article twenty-one
That neither the king nor his bailiff shall take another man's timber for castles or other works of his, except with the agreement of him whose timber it is.

Article thirty nine
No free man shall be arrested or imprisoned or outlawed or exiled or victimised in any other way, neither will we attack him or send anyone to attack him, except by the lawful judgement of his peers or by the law of the land.
In a very real sense, what Fitzwalter and his fellow barons did became a precursor for Samuel Rutherford's Lex Rex, which argued that the law was superior to the authority of a king. These ideas, and many others, eventually became a part of Magna Carta:
KNOW THAT BEFORE GOD, for the health of our soul and those of our ancestors and heirs, to the honour of God, the exaltation of the holy Church, and the better ordering of our kingdom, at the advice of our reverend fathers Stephen, archbishop of Canterbury, primate of all England, and cardinal of the holy Roman Church, Henry archbishop of Dublin, William bishop of London, Peter bishop of Winchester, Jocelin bishop of Bath and Glastonbury, Hugh bishop of Lincoln, Walter Bishop of Worcester, William bishop of Coventry, Benedict bishop of Rochester, Master Pandulf subdeacon and member of the papal household, Brother Aymeric master of the knighthood of the Temple in England, William Marshal earl of Pembroke, William earl of Salisbury, William earl of Warren, William earl of Arundel, Alan de Galloway constable of Scotland, Warin Fitz Gerald, Peter Fitz Herbert, Hubert de Burgh seneschal of Poitou, Hugh de Neville, Matthew Fitz Herbert, Thomas Basset, Alan Basset, Philip Daubeny, Robert de Roppeley, John Marshal, John Fitz Hugh, and other loyal subjects:

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.
And though Magna Carta was only intended to protect the rights of the noble baron class (peasants did not receive or expect anything from Magna Carta) it did help to foreshadow the course that later charters would eventually take. Magna Carta, which stood on the shoulders of many other important charters, became a foundation for other documents to build upon. And while Magna Carta was rejected by King John, the Pope and a large number of the nobility, it did endure as an example of humanity's quest for equality, even in the face of secular and religious rebuking of such actions. In short, Magna Carta stands as one of many banners to society's endless quest for liberty.

***Part II: The Predecessors to Magna Carta***


King of Ireland said...

Good post but I think this more nuanced than you let on. I like the fact that you bring to the table that their were numerous govts in Medevil Europe that had rights on the radar screen. I think you miss that rights based on the dignity of man balanced out the Divine Right of Kings more than most let on.

Let's keep in mind that the words used in the DOI and those of Aquinas are almost the same. I think what the modern proponent of "Democracy" seems to miss is that the founders, right or wrong, thought more like Aquinas and other pre-modern thinkers than we see today.

To a man they deplored democracy.

Brad Hart said...

Thanks, King.

You write:

I think you miss that rights based on the dignity of man balanced out the Divine Right of Kings more than most let on.

I don't agree. Medieval Europe was constantly at war over this issue. I don't see much balance. The Divine Right of kings was a real and palpable reality for those in Medieval Europe. Yes, they fought against it from time to time and yes, there were debates on the rights of man, but they were almost always inferior to Divine Right kingship. The institutions of feudalism, the church, social status, etc. all helped to solidify this in the minds of the people. It took time...a lot of time (along with a Renaissance and Enlightenment) to overcome it.

I think it's a DRASTIC mistake for us to assume that those of Medieval Europe (and earlier) were dealt the same hand. Sure, the great thinkers of all eras have agreed on the basic ideas of individual rights but we are still subjected to our respective time periods.

Let's be careful not to inject too much "presentism" into the argument here. Medieval Europe is an important era to understand (and I plan on bringing it up a lot more in the future) but it was a different ball game...quite different.

King of Ireland said...

I have been so busy lauching my Real Estate blog that I have neglected to finish my posts about Brian Tierney's book. He gives great insight into this topic that would seem to dispute at least some of what you are saying. The sweeping changes in Canon Law that were brought about by the reintegration of Corpus Juris and new insights by men like Huggio did serious damage to the idea of Divine Right.

With that side it was usually instigiated by Popes against Monarchs they did not like. But not always and at times many of the thinkers rebuked the Pope's too.

As Tierney states, not much is really know about these aspects of this era because it has not been well studied. Kudos for leading AC down that road in a more substantive way than the usual musings. Though I think those discussions help set the frame of the importance of this era to the Founding.

Brad Hart said...

Thanks for mentioning Brian Tierney. I'll have to check this book out. With that said, I must insist on the fact that individual rights were still VERY much in their infancy in the Medieval era. Sure, people were tossing them around and questioning Divine Right but they were not massive movements at this point. I've talked with several Medievalists whom I trust that they seem to unanimously agree. It's not that these concepts weren't present; they most certainly were, but they were still incubating embryos...hardly viable to live on their own.

I too agree that this is an area where AC needs to venture further. I'm planning on going there almost exclusively.

King of Ireland said...

I agree that these ideas were not fully developed in the modern sense. I am just kind of thinking aloud about if our prism of modern rights is not wrongly applied to that era. In other words, if we look at that era through a view of rights that I think even Locke would call license not liberty we can start to think the founding was miles ahead and a bridge to are enlighted views.

But what if the founding view of rights is closer to the 11th Century view than ours? I think we need to unpack the liberty not license idea more as we go back.

Brad Hart said...

Well, I think many of the ideas of liberty and rights can be found in many time periods. However, this should not cause us to succumb to the delusion that certain ideas were born in one era or another. Instead I believe that a better way of thinking is to see how these events were built upon each other, The founders may have shared a few, very general ideas with Aquinas and other ancient and Medieval thinkers but they are still separated by hundreds of years. Medieval Europe was a different planet from colonial America in the 18th century. When we draw comparisons we MUST recognize this fact.

But yes, I too believe that many ideas regarding rights have their roots long before the founding, which is why I want to dive into them further. But let's not make the mistake of thinking that these very different eras were all that similar.

Tom Van Dyke said...

There are two related concepts that find fruition in the Founding---"subjective" [read: unalienable] rights, and that sovereignty rests with the people.

As we see with the Magna Carta, otherwise rights are only political, whatever can be wrested from the government, i.e., the king.

Brian Tierney argues that "subjective" rights are under development in the church courts, and Francisco Suarez vs. the Divine Right of Kings invests sovereignty with the people.

Google Book preview of Tierney's "The Idea of Natural Right" here, see p. 310 for Suarez, whose book was burned by the champion of divine right, King James I. [Actually, he had the hangman do it. Dudes were weird back then.]

Great discussion, fellas, and absolutely essential to our understanding of "rights" in this modern age.

Brian Tubbs said...

Brad, I liked the picture of Russell Crowe's Robin Hood. Nice touch. :-) I too was amused at Hollywood's playing around in the historical sandbox when I saw that movie.

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