Magna Carta: A Libertarian Document?
If Magna Carta was a key moment in the West's advancement toward classical liberalism, the trajectory was neither straight nor smooth.
Monday is the 800th anniversary of the day in 1215 that rotten King John put his seal to the sheet of parchment called the Articles of the Barons—later to be known as Magna Carta—at Runnymede in England. It wasn't the first charter issued by an English monarch pledging to subordinate his power to the law (custom), yet it has had a staying power like no other in the imagination of people worldwide. This is especially ironic when you consider that at John's request, Pope Innocent III nullified the charter just 11 days later and excommunicated the rebellious barons who forced it on him. (Further ironies: the charter had been drafted by the learned archbishop of Canterbury, Stephen Langton, whom the Pope had selected over John's objection, and the charter affirmed the autonomy of the church.)
With the nullification, the civil war resumed between king and landholders who had grown tired of his taxes for wars in France (which he lost along with vast properties) and other impositions. In the end, however, they more or less triumphed, as John's successors, starting with his nine-year-old son, reissued the charter, albeit in revised editions. The principle that an English king was not a law unto himself would stand. While Magna Carta did not raise the curtain on a libertarian, or even classical liberal, future, it may be said to have gotten the ball rolling, even if that was not part of anyone's intention.
As I've mentioned before, the story of Magna Carta is instructive precisely because of its unintended consequences. This has been long noted, for example, by John Millar (1735-1801), a student of Adam Smith, a figure of the Scottish Enlightenment in his own right, and author of the multivolume An Historical View of the English Government, From the Settlement of the Saxons in Britain to the Revolution in 1688 (1787). The judge and literary critic Francis Jeffrey wrote of Millar in 1804:
To some of our readers, perhaps, it may afford a clearer conception of his intellectual character, to say that it corresponded pretty nearly with the abstract idea that the learned of England entertain of a Scotish [sic] philosopher; a personage, that is, with little or no deference to the authority of great names, and not very apt to be startled at conclusions that seem to run counter to received opinions or existing institutions; acute, sagacious, and systematical; irreverent towards classical literature; rather indefatigable in argument, than patient in investigation; vigilant in the observation of facts, but not so strong in their number, as skilful in their application.
Jeffrey wrote that Millar's "leading principle" was that institutions evolve "spontaneously from the situation of the society."
"Instead of gazing, therefore, with stupid amazement, on the singular and diversified appearances of human manners and institutions," Jeffrey wrote, "Mr. Millar taught his pupils to refer them all to one simple principle, and to consider them as necessary links in the great chain which connects civilized with barbarous society."
(I found Jeffrey's quotes in Mark Salber Phillips's introduction to Liberty Fund's 2006 edition of Millar's An Historical View of the English Government. Phillips notes that one of Millar's objectives was "a rebuttal of what Millar took to be the royalist and authoritarian politics of Hume's History [of England]," though Millar salutes Hume as "the great historian of England, to whom the reader is indebted for the complete union of history with philosophy.")
Regarding Magna Carta, in book two, chapter 1 of his Historical View, Millar writes, "The character of John … is universally known, as a compound of cowardice, tyranny, sloth, and imprudence. This infatuated king was involved in three great struggles, from which it would have required the abilities of his father [Henry II], or of his great grandfather [Henry I, son of William the Conqueror], to extricate himself with honour; but which, under his management, could hardly fail to terminate in ruin and disgrace."
The struggles were against the challengers to his land holdings in France, Pope Innocent III, and the rebellious barons. After his humiliating losses in France, John made peace with the pope—accepting Langton at Canterbury and, in Millar's words, "surrendering his kingdom to the pope, and submitting to hold it as a feudatory of the church of Rome."
But his troubles were only beginning. Millar writes:
The contempt which this abject submission of their sovereign could not fail to excite in the breast of his subjects, together with the indignation raised by various acts of tyranny and oppression of which he was guilty, produced at length a combination of his barons, who demanded a redress of grievances, and the restoration of their ancient laws. As this appeared the most favourable conjuncture which had occurred, since the Norman conquest, for limiting the encroachments of prerogative; the nobility and principal gentry were desirous of improving it to the utmost; and their measures were planned and conducted with equal moderation and firmness.
John would have none of it, and he moved to quash the rebellion of the barons. "He endeavoured by menaces to intimidate them; and, by delusive promises, to lull them asleep, in order to gain time for breaking their confederacy." When that failed, "he made application to the pope as his liege lord; and called upon his holiness to protect the rights of his vassal."
War broke out, and the king, "deserted by almost all his followers," saw the ranks of the rebels grow.
All further opposition, therefore, became impracticable. At Runnemede, a large meadow between Windsor and Staines; a place which has been rendered immortal in the page of the historian and in the song of the poet; was held that famous conference, when the barons presented, in writing, the articles of agreement upon which they insisted; and the king gave an explicit consent to their demands. The articles were then reduced into the form of a charter; to which the king affixed his great seal; and which, though it was of the same nature with the charters obtained from the preceding monarchs, yet, as it was obtained with difficulties which created more attention, and as it is extended to a greater variety of particulars, has been called, by way of distinction, the great charter of our liberties.
Millar claims that "feudal superiority of the crown, over the nobles" had been the rule since William the Conqueror, so "it would probably have been a vain project to attempt the abolition of it." Then what was the the point of the gathering Runnymede on June 15, 1215?
The chief aim of the nobility, therefore, in the present charter, was to prevent the sovereign from harassing and oppressing them by the undue exercise of those powers, the effects of their feudal subordination, with which he was understood to be fully invested…
The jurisdiction exercised by the king, as a feudal superior, was another source of oppression, for which a remedy was thought requisite; and several regulations were introduced, in order to facilitate the distribution of justice, to prevent the negligence, as well as to restrain the corruption, of judges: in particular, it was declared, that no count or baron should be fined unless by the judgment of his peers, and according to the quality of the offence.
Millar then makes an intriguing point about Magna Carta's application beyond the barons.
While the barons were thus labouring to secure themselves against the usurpations of the prerogative, they could not decently refuse a similar security to their own vassals; and it was no less the interest of the king to insist upon limiting the arbitrary power of the nobles, than it was their interest to insist upon limiting that of the crown. The privileges inserted in this great transaction were, upon this account, rendered more extensive, and communicated to persons of a lower rank, than might otherwise have been expected. Thus it was provided that justice should not be sold, nor unreasonably delayed, to any person. That no freeman should be imprisoned, nor his goods be distrained, unless by the judgment of his peers, or by the law of the land; and that even a villein should not, by any fine, be deprived of his carts and implements of husbandry.
I think that king and barons were aware of the fact, articulated by Étienne de La Boétie, that since the few rule the many, the ruled have it in their power to overthrow their rulers. Therefore, "liberal" measures are sometimes necessary to pacify the many to keep them from having revolutionary thoughts or to keep particular groups (such as the rising merchant class) from shifting allegiance to another contender for power. More often than not, acts of political kindness are the result of such a motive.
It is worthy of notice, however, that though this great charter was procured by the power and influence of the nobility and dignified clergy, who, it is natural to suppose, would be chiefly attentive to their own privileges; the interest of another class of people, much inferior in rank, was not entirely overlooked: I mean the inhabitants of the trading towns. It was declared, that no aid [tribute] should be imposed upon the city of London, unless with consent of the national council; and that the liberties and immunities of this, and of all the other cities and boroughs of the kingdom, should be maintained…. The insertion of such clauses must be considered as a proof that the mercantile people were beginning to have some attention paid to them; while the shortness of these articles, and the vague manner in which they are conceived, afford an evidence equally satisfactory, that this order of men had not yet risen to great importance.
With the Great Seal of the king affixed, copies of Magna Carta were distributed throughout the country. But, Millar writes, "nothing could be farther from [John's] intentions, than to fulfil the conditions of the charter."
No sooner had he obtained a bull from the pope annulling that deed, and prohibiting both the king and his subjects from paying any regard to it, than, having secretly procured a powerful supply of foreign troops, he took the field, and began without mercy to kill and destroy, and to carry devastation throughout the estates of all those who had any share in the confederacy. The barons, trusting to the promises of the king, had rashly disbanded their followers; and being in no condition to oppose the royal army, were driven to the desperate measure of applying to Lewis, the son of the French monarch, and making him an offer of the crown. The death of John, in a short time after, happened opportunely to quiet these disorders, by transmitting the sovereignty to his son Henry the third, who was then only nine years of age.
Under the prudent administration of the earl of Pembroke, the regent, the young king, in the first year of his reign, granted a new charter of liberties, at the same time that the confederated barons were promised a perpetual oblivion for the past, in case they should now return to their allegiance.
There is much more to this story, of course. Suffice it to say here that Millar draws three broad conclusions from his account.
First, he sees significance in the fact that Magna Carta was not the only charter issued by a king; as noted, others were issued before and afterward. "Taking those charters, therefore, in connexion with one another, they seem to declare, in a clear and unequivocal manner, the general and permanent sense of the nation, with respect to the rights of the crown; and they ascertain, by express and positive agreement between the king and his subjects, those terms of submission to the chief magistrate, which, in most other governments, are [not] otherwise explained than by long usage, and which have therefore remained in a state of uncertainty and fluctuation."
Second, contrary to "common opinion," Millar writes, "from the Norman conquest  to the time of Edward the first [reign, 1272-1307]; while the barons were exerting themselves with so much vigour, and with so much apparent success, in restraining the powers of the crown, those powers were, notwithstanding, continually advancing."
The repeated concessions made by the sovereign, had no farther effect than to prevent his authority from increasing so rapidly as it might otherwise have done. For a proof of this we can appeal to no better authority than that of the charters themselves; from which, if examined according to their dates, it will appear, that the nobility were daily becoming more moderate in their claims; and that they submitted, in reality, to a gradual extension of the prerogative; though, by more numerous regulations, they endeavoured to avoid the wanton abuses of it. Thus, by the great charter of Henry the third, the powers of the crown are less limited than by the charter of king John; and by this last the crown vassals abandoned some important privileges with which they were invested by the charter of Henry the first.
If Magna Carta was a key moment in the West's advancement toward liberalism, the trajectory was neither straight nor smooth.
Finally, we come to the law of unintended consequences. Millar says students of history "will easily see that the parties concerned in [the procurement of 'these great charters'] were not actuated by the most liberal principles; and that it was not so much their intention to secure the liberties of the people at large, as to establish the privileges of a few individuals." He sums up:
A great tyrant on the one side, and a set of petty tyrants on the other, seem to have divided the kingdom; and the great body of the people, disregarded and oppressed on all hands, were beholden for any privileges bestowed upon them, to the jealousy of their masters; who, by limiting the authority of each other over their dependants, produced a reciprocal diminution of their power. But though the freedom of the common people was not intended in those charters, it was eventually secured to them; for when the peasantry, and other persons of low rank, were afterwards enabled, by their industry, and by the progress of arts, to emerge from their inferior and servile condition, and to acquire opulence, they were gradually admitted to the exercise of the same privileges which had been claimed by men of independent fortunes; and found themselves entitled, of course, to the benefit of that free government which was already established. The limitations of arbitrary power, which had been calculated chiefly to promote the interest of the nobles, were thus, by a change of circumstances, rendered equally advantageous to the whole community as if they had originally proceeded from the most exalted spirit of patriotism.
The power of apparent precedent worked in the common people's favor; a small measure of liberty was parlayed into a larger measure, despite the efforts of the privileged classes.
When the commons, in a later period, were disposed to make farther exertions, for securing their natural rights, and for extending the blessings of civil liberty, they found it a singular advantage to have an ancient written record, which had received the sanction of past ages, and to which they could appeal for ascertaining the boundaries of the prerogative. This gave weight and authority to their measures; afforded a clue to direct them in the mazes of political speculation; and encouraged them to proceed with boldness in completing a plan, the utility of which had already been put to the test of experience. The regulations, indeed, of this old canon, agreeable to the simplicity of the times, were often too vague and general to answer the purposes of regular government; but, as their aim and tendency were sufficiently apparent, it was not difficult, by a proper commentary, to bestow upon them such expansion and accommodation as might render them applicable to the circumstances of an opulent and polished nation.
Can we libertarians do something similar today?
This piece originally appeared at Richman's "Free Association" blog.