Chapter XI. The Meaning of Magna Carta

CHAPTER XI The Meaning of Magna Carta In the long run, England was to make the most successful adjustment in the Old World, but not without a continuous struggle and recurrrent crises of violence, over five centuries. The first crucial effort of the English to set the foundations of an enduring structure is marked by Magna Carta, exacted from King John by his rebel subjects. The provisions of this great document are seldom mentioned today, excepting the sentence: "To none will we sell, to none will we deny, to none will we delay right or justice." Certainly this is admirable, defining abstractly the essential purpose for which government is instituted j but given merely as a promise from the chief executive, the king, it was unlikely to be observed unless the whole organization was designed to work that way against the king's will. Now even without the contemporary context, the practical features of the Charter still reveal what were the existing bases and the forces in motion.

The static political structure was feudal. The larger towns, having obtained their "liberties," contributed to the national treasury through various money taxes, direct or indirect, and levied somewhat irregularly, therefore liable to dispute. The church was in a dangerous intermediate position, being interlocked with feudalism by the system of land tenure on its immense properties, while in doctrine it asserted and protected the primary principle of contract by which trade was carried on. Necessarily also the long energy circuit of the church, its connection with Rome, was maintained in money, funds remitted to Rome; this could not have been done any other way. 106 THE MEANING OF MAGNA CARTA IO7 The original authority of the English monarchy derived wholly from the feudal order, which contains its own checks and balances, automatically regulated by the limited energy circuit; the surplus could only be delivered to the king in men-at-arms and their supplies. But in King John's time a considerable share of the customary feudal service dues had been commuted into cash fees. These, added to the crown revenues from trade, gave the king a money income, over which the producers had no control. They could neither stop supplies at the source except by forcible resistance, nor exercise any legal check on the king's expenditures after the money had been paid into his hands. Thus the king could raise and subsist an army composed of men detached from regional bases, fragments of dislocated mass, into which the kinetic energy of the nation was diverted to put them in motion. Here is the formula for wars apparently initiated by the will of a king, executive, or dictator 5 the hook-up ensues the result, and can operate to no other end. King John had such a mercenary army, partly recruited abroad, as indicated by the clause of the Charter requiring him to "remove out of the kingdom all foreign knights, crossbowmen and stipendiary soldiers, who have come with horses and arms to the molestation of the kingdom."

In historical references, the gaining of the Charter is usually credited to "the Barons" -> but in fact the document was written or drafted by the Archbishop of Canterbury, Stephen Langton; and the names which lead all the rest in the preamble are those of the dignitaries of the Church, being the Archbishops of Canterbury and Dublin, seven bishops, the Master of the Templars, and the papal legate 5 while the first clause exacts that "the English Church shall be free," including "freedom of elections" to clerical offices. This was to prevent the king from making appointments to abbeys and benefices, through which he could siphon off the revenues of the church. Obviously he had been doing so. Next the interest of the feudal aristocracy was to be 108 THE GOD OF THE MACHINE guarded against the royal or central power, by fixing the dues on military fiefs at the traditional rate 5 and leaving the assessment of cash fees and extraordinary "aids" to "the common council of the kingdom." Similar dues or aids taken by the lords from "their own free men" were also limited.

The general purpose was to prevent the gradual expropriation of small holders by the lords of the manors, and of the lords by the king ; that is, to maintain the regional bases against the central authority, and the individual bases against the regional authorities. Since these constituted the static frame of the political organization, the problem had at least been correctly apprehended, although it would not have been expressed in our terms. But taxation is not the only means by which kinetic energy may break down static structure. As no method of maintaining regional bases was thought possible other than by hereditary succession to land, one clause of the Charter exempted land from passing by title through foreclosure of mortgage. Land could be pledged as security for a loan 5 but in default, only the revenues might be sequestrated toward payment of the debt. Further, if the debtor died and the heir was a minor, interest on the mortgage ceased during his minority. Feudal dues, dower rights, and provision for children of the deceased debtor, also took precedence of payment on a money debt, which could be liquidated only "out of the residue." Probably this limitation of debt had a double effect, partly contrary to its intent, especially with the short life expectancy of those days; it would tend to keep down the principal of loans, and equally to raise the interest rate. The high usury of the period should be understood in this context.

Then a curious clause indicates the centripetal effect of kinetic energy thrown into the political channel; for the Charter contains a promise from the king that if any man died in debt "to the jews," or money lenders, "and if that debt shall fall into our hands, we will not take anything THE MEANING OF MAGNA CARTA IO9 except the chattel contained in the bond." It is obvious that property owners were apt to borrow more than they could conveniently pay; and that the money lenders, finding collections difficult, especially against the estates o£ minors, had been discounting their notes with the king, who could then use the royal prerogative to foreclose. The persecution and expulsion o£ the Jews from various European nations, and the lingering resentment in anti-Semitism, traces mainly to this unhappy combination of the power of the executive and the action of kinetic energy (money) undermining the static structure. As it was easy to focus popular anger on "the jews"

as non-citizens, the king invariably and promptly turned against them when it was convenient to exculpate himself and loot their fortunes. But the process had no relation whatever to the nationality or race of the persons involved 5 it occurred at other times in other countries when the financiers were of native stock, and the public fury was just as easily aroused against finance, or financiers as a group, for the same intrinsic reason. The true remedy for such an injurious condition is to strengthen the regional bases and limit the control and absorption of the national finances by the central executive. That is what the Charter was intended to do; with a wisdom in advance of the age, it did not propose either penalization or expulsion of "the jews" or financiers, but restriction of the authority of the crown. Here it may be said that at any time when finance is under attack through the political authority, it is an infallible sign that the political authority is already exercising too much power over the economic life of the nation through manipulation of finance, whether by exorbitant taxation, uncontrolled expenditure, unlimited borrowing, or currency depreciation.

The final and not least vital restriction of the executive authority (the king) is of peculiar significance, as showing that the industrial-commercial group must have been strongly influential in the framing of Magna Carta, though not named as parties to the formal act. For there was a third method 110 THE GOD OF THE MACHINE by which the king could find a pretext for expropriation of his subjects of every degree5 that is, by exorbitant fines on trumped-up charges. To prevent this, it was stipulated that fines might be "amerced" only in proportion to the offense 5 with the still more vital exception of "saving" to the free man his "contenement" (landholding) 5 to a merchant his merchandise5 and to the villein his wainage (farm carts and other equipment). That is to say, no man could be stripped of his capital, and thus of his livelihood, by a fine, for an alleged political offense. As a solid precaution, it was stated that the amount of such fines might not be fixed by the king nor even by the judges 5 but must be assessed by a jury of the accused man's peers, nobles for nobles and "honest men of the vicinage" for merchants, freemen, and villeins. Further, the interest of industry and commerce was safeguarded by a clause so far in advance of today's usage that it gives one a shock of surprise. "All merchants shall have safety and security in coming into England and going out of England, and in staying and traveling through England, by land as by water, to buy and sell, without any unjust exactions." In time of war, foreign merchants of enemy nationality might be "apprehended without injury to their bodies and goods," and must be held in safety if English merchants in enemy countries were "in safety there." Finally, "it shall be lawful to any person, for the future, to go out of the kingdom and to return, safely and securely, unless it be in time of war, for some short space," excepting only "prisoners and outlaws" and enemy nationals. The kinetic energy was allowed to make the long circuit 3 and England was on the way to world power.

On the whole, it is impossible to imagine a sounder grasp of statecraft than Magna Carta reveals, given the existing set-up and circumstances. It was rightly looked to for five centuries as a beacon and a landmark of English liberty. Its principles and some of its practical measures remained in effect to some degree permanently, in spite of abuses and THE MEANING OF MAGNA CARTA III the interruptions of temporary tyranny. Yet since it did not actually terminate the civil war which brought it forth, nor prevent similar and protracted disorders subsequently, it must be instructive to discover in what feature it was defective. One may say that probably, given the circumstances, nothing better could have been devised; for if it did not take full effect at the time, it laid down some indispensable axioms for future reference. The defect was the absence of the massinertia veto, as a national function, both in fact and in law.

The enforcement of the Charter against the king was assigned to an elective committee of twentyfive barons, who "with the community of the whole land" were to seize the person, family, castles, and lands of the king, but without harming him (the latter condition would naturally be rather difficult at any time and might be impossible). They were to detain him until he redressed grievances and then resume their allegiance; another doubtful chance. What was wrong with this scheme in terms of material organization was that in the strictly feudal order the serfs and other workers on the land constituted the factor of mass, and the function of mass was exerted passively, by inertia, through the inherent limitation which feudalism imposed on production, and which restricted the feudal military effort to the resources of local circuits. The check on the king was a secondary effect. In brief, as the barons were the "pillars of the state" resting on regional bases, their resistance should have been static to correspond with their relation to the crown. But this was impossible when the king had large revenues from the mercantile interest; while active resistance from the nobles was simply civil war. (For the same reason, the lack of legitimate control over supplies they provided, the merchants were driven to civil war against the king in the seventeenth century.) Anyhow, one can think of no measure possible at the time the Great Charter was framed, by which the general factor of mass could have been found for the whole nation and its function legitimately represented in the national gov112 THE GOD OF THE MACHINE ernment. Unhappily, even the immediate emancipation of the serfs would not have supplied this deficiency of the massveto and ensured stability} on the contrary, if they had merely been released from the land, the action would have thrown more men into the wage-army of the king, to smash the nation. The whole land title-system would have had to be altered, to provide individual holdings ; and such a thing cannot be done overnight, and re-secured the next day firmly on a new apportionment. The procedure is impossible because it would have to be done by political edict, therefore even if it were nominally essayed, it would actually vest title in the political power and not in the individuals to whom the transfer was supposed to be made. That is, whatever power was assumed to be sufficient to take land from one person and give it to another could forever after take it back at will, and so would always have the real disposal of the land.

Thus the serfs got next to nothing in the Charter, beyond the reservation of their farming tools from fines. But the nobles, the merchants, and the yeomen got their positions on record, as validated by previous custom and law, and with the means to make a stand sufficiently secured, so that they could persist in opposition to the royal power until they did forge the necessary instrument of the massveto. That was to be the House of Commons, with its control over taxation and the periodic grant of supplies. In the course of that long struggle, serfdom was abolished, bought out piecemeal. Money, kinetic energy, washed it away. There was an unexpected deflection, a side-swirl of the current of energy, as an almost immediate result of the signing of the Charter. King John had been successively at odds with the nobles, the church, and the merchants, until they combined against him with the Charter. He then made a deal with the Pope, by which he was to be absolved from his signatory oath 5 and in exchange, he vowed temporal allegiance to the Pope as his feudal lord, by which he pretended to bring in the whole kingdom as a fief. But there was no THE MEANING OF MAGNA CARTA II3 law nor principle of law, canonical or civil, which could cover such a transaction. True that church dignitaries could be lords of the manor, either by their own holdings or in virtue of church lands 3 and there were prince-bishops in Europe to whom temporal lords owed feudal allegiance. And the man who was king of England, if he were also lord of a manor in England, having no feudal superior, might conceivably have declared himself a vassal of the Pope. But this relationship would have been valid only in respect of the given manor or fief. The kingdom was no such matter ; it was composed of a large number of fiefs whose holders had each sworn allegiance to the king. Such an oath is not transferable by the recipient to another person. The nature of a Christian vow is that it must be voluntary ; and the person making it must be fully informed of what it covers and imports; this follows from the doctrine of free will for salvation. In the feudal hierarchy it was so understood that a tenant's allegiance to his lord went with the lord's allegiance to the king; but none of John's subjects, noble or otherwise, had agreed nor understood that the king could make them subject to any further temporal superior. In short, John promised to hand over something which was nontransferable. The deal was tempting not in its nominal terms of feudalism, but because of the money revenue. The kinetic current was so strong it almost undercut the structure of the nation in toto, threatening to lift and move it to another situation, as a stream may move a house.

Regrettably, the pope agreed to the deal, and let down the courageous Archbishop Langton and all the other eminent clerics who had wrung the Charter from John. They had exercised the proper and historic function of the church in resistance to the state; and the earthly head of the church repudiated their action. But neither king nor pope could make it stick; the immediate result was the resumption of civil war. It is at least arguable that the deferred consequence was the schism, three centuries later, of the English 114 THE GOD OF THE MACHINE from the Catholic communion. Historic sequences always trace back to causes remote in time; and such a betrayal is never forgotten. Materially and morally, it left the English church in a perilous position. In the continuing struggle of the king, the nobles, and the merchants, whichever party won temporarily, the church was bound to lose a little every time, having lost its prestige as the mediatory agency. Serfdom obtained on some of the church lands, hence it would seem oppressive to the peasants, and would no longer be identified with liberty. The king still had his money revenue to support his private army. The merchants had grown strong enough to fight for themselves, and thus represent the contract society. The size of the church landholdings really weakened the nobles, by withdrawing the occupants from feudal military service. But as wealth, the church lands and revenues were an obvious temptation to plunder; while any party taking the side of the church could never again be quite sure he would not be sold out abroad. The kinetic energy flowing to the executive, the king, first destroyed feudalism, the power of the nobles over the king; then it swung the king (Henry VII) into a working alliance with the merchants, identifying their interests; then it was turned directly against the church as a landed institution, and broke up the great Abbey lands, to reconstitute a new aristocracy in conjunction with the new control agency which had been made workable in the House of Commons. Finally, the kinetic energy, under that control, was turned against the executive, the king, and it broke the royal prerogative. But in the process, too many people lost their footing on the land.

Taught by adversity in the civil war of the seventeenth century (which was a culmination of the process that reduced the too-heavy framework of the aristocracy by attrition in the Wars of the Roses, and all but destroyed it with the centralized tyranny of Henry VIII), the English nobles accepted much the same compromise as had been made by the aristocratic order in the Roman republic. The hereditary THE MEANING OF MAGNA CARTA II5 feature was retained in the upper house for the regional bases; but the effective veto was in the Commons 5 and the law was above the crown. In this last development, the secular government learned from the church how to fix a center, a problem which had been insoluble in the Roman empire.* The authority (since defined as infallibility) of the Pope existed finally only in ecumenical council and within a prescribed sphere (of faith and morals). So in the English form of secular government as it evolved, the authority of the king existed only in conjunction with Parliament and within the scope of law. When Charles I failed to perceive this distinction, it was imparted to him with the edge of the axe.

In mechanism, this is dead center, which is a necessity in a reciprocating action. The king does nothing; that is what he is for, being the point at which the forces meet. The crown was indispensable, given the historic set-up, for the aggregation of dominions, colonies, and dependencies of disparate types which formed the British empire, because it obviated political dealings between any two of them, or 'primary action from the center. Since they did not have to come to specific agreements, they had no occasion to disagree. At the beginning of the nineteenth century, the internal structure of England was essentially that of the Roman republic, with a modified aristocracy adjusted to an elective system; and as the English-speaking colonies began with a large measure of local self-government, the army was not an active and direct political factor in the administrative mechanism. * The one serious weakness in the political structure of the Roman empire made this solution impossible. In the church, the diocese was a genuine regional subdivision, its representative (the bishop) being maintained directly by local revenues, of which only a moiety went to Rome. Likewise the English noble drew his revenues directly from his own local estate to support concomitant local political functions. Neither of them had to depend on a redistribution of revenue (energy) from the center. But the provincial officials of the Roman empire were thus dependent; they were paid from the center; and the stream of energy drawn off in taxes to Rome undercut them; they had no regional representative character. Therefore the adjustment at the center had to be made, as noted, by the encounter of "raw forces"—the army and the potentiality of revolt.

Il6 THE GOD OF THE MACHINE As with Rome, the world accepted the British empire because it opened world channels of energy for commerce in general. Though repressive (status) government was still imposed to a considerable degree on Ireland with very bad results, on the whole England's invisible exports were law and free trade. Practically speaking, while England ruled the seas any man of any nation could go anywhere, taking his goods and money with him, in safety. But a traditional structure adapted to accommodate a high energy potential is continually under severe stress. The condition of the landless laborer poses a problem which is still unsolved. He is a particle drawn into the energy circuit as iron filings will cohere in a magnetic current; then whenever industry slackens, which is to say the current is weaker, many of the particles must drop off again. Unemployed workmen, aggregated only by inertia, thus become a fragment of dislocated mass within the economy. As such, they are thrown against the structure, and naturally feel it only as obstruction. It is equally natural, since they are sentient being and not mere physical objects, that they should demand that the structure be abolished; or at least, spokesmen will appear for them who will make that demand, as in the Chartist movement. A man pinned against a stone pier is not likely to consider whether or not the pier is necessary for any purpose, or what else could be put in its place. He can hardly be expected to think of it in those terms.

The greatest misfortune of the productive worker who has no base is that when he is dropped by the weakened current he falls into the same material category as the habitually nonproductive. The added weight makes the nonproductive group feel insecure. Their uneasiness finds emotional expression in anger against the productive element. In the hope of attaching themselves more firmly to the production line, they will then demand restrictive regulation of industry and comTHE MEANING OF MAGNA CARTA II7 merce, on the pretext (as Shaftesbury innocently admitted) that it is for the benefit of the working man. But such a proposal requires status law. The peculiarity of status law is that it cuts in and diverts energy at the beginning of the circuit instead of at the end. It makes the nonproductive a first charge on production, ahead of maintenance. If the various taxes recently imposed in previously free economies, under the pretext of helping the indigent, are examined, their nature becomes evident. They have to be paid even though the producer goes bankrupt.

Such taxing schemes seldom or never originate with workingmen. They originate among those who draw their incomes from fixed charges—from entailed property or from endowed or tax-supported institutions—and who therefore wish to have their relation to production affirmed as a governing rule. "But the unemployed workingman wants to work, to be active, to live. The demands for status law and for the abolition of structure will therefore be more or less simultaneous and both may be included in the same legislative measures. Thus both are likely to be put in effect at about the same time. The result is new visible. The true cause of Fascism, or Nazism, or Communism, is the structureless state,* in which the whole energy of the nation, its production line, is thrown into the repressive mechanism of centralized government with status law. It is a death-trap. The drawbacks inherent in an aristocratic order are so obvious and inherently onerous, that the fact it had a use has been largely forgotten; but it did supply structure, by maintaining regional bases. Whenever an aristocracy loses this local representative function, it is on the verge of dissolution.

* The ancient tyrannies or despotisms were nations which developed some industry without achieving any structure. This failure to synchronize inevitably causes dislocation, violence, and misery.