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The Secret History of the Magna Carta

Its most far-reaching provisions aren’t the ones we remember.

Peter Linebaugh

8In one of his communiqués from the Lancandan jungle of Central America Subcommandante Marcos, the spokesman of the indigenous people’s revolt that burst upon the world in 1994, referred, of all things, to the Magna Carta. The brilliant postmodern revolt cited a tedious premodern source. Why?

Marcos described the global forces that daily suck out 92,000 barrels of oil, leaving behind “ecological destruction, agricultural plunder, hyperinflation, alcoholism, prostitution, and poverty” while the campesinos in Ocosingo have to cut wood to survive. The ejido, or village commons, has been destroyed, and its legal protection, Article 27 of the Mexican Constitution, repealed.

The story of the extraction of natural resources and limiting indigenous people’s access to land is repeated around the world. Last summer hundreds of women seized the Chevron Escravos Oil Terminal in Nigeria (the word escravos means “slavery” in Portuguese). Its engineers have widened the Escravos River in the Bight of Benin, destroying the mangrove forest and the village of Ugborodo. Women can no longer hew wood for fuel or draw clean water for drink. Prostitution is the only “decent-paying job.”1

In the upland hamlets of Vietnam, where women collected firewood, bamboo shoots, medicinal plants, and vegetables, forest reserves have recently been enclosed by metal fence. Men can no longer legally climb trees for honey, nor cut timber for house repairs. The women of the hamlets suffer especially.2

These stories reflect three global trends: woodlands are being destroyed in favor of commercial profit,3 petroleum products are substituted as the base commodity of human reproduction and world economic development, and commoners are expropriated. “Life comes from women and food comes from land”—these are axioms to the critique of globalization, liberalization, and privatization made by recent advocates of a subsistence perspective.4 Michael Watts has dubbed as “petro-violence” the terror, dislocation, separation, poverty, and pollution associated with petroleum extraction. The United States has intensified this pattern with war.

The indigenous voice from the jungle invokes the Magna Carta not only to assert the familiar protections against state power associated with constitutional democracies, but the right to common resources as well. How can this be? What is the Magna Carta?

The Magna Carta and Human Rights

For eight centuries the Magna Carta has been venerated. “It was born with a grey Beard,” Samuel Johnson said. Scholars and scoundrels, judges and jackasses have fiddled with its diplomatics, paleography, translation, interpretation, and application.

The story of its political and legal rights is known. Indeed it is too well-known, inasmuch as it is remembered largely as myth and as icon, as part of the foundation of “Western civilization” and the modern state. The Massachusetts Body of Liberties (1641), the Virginia Bill of Rights (1776), the Fifth and 14th Amendments to the U.S. Constitution quoted its language. Eleanor Roosevelt in her 1948 speech to the U.N. General Assembly, urging it to adopt the Universal Declaration of Human Rights, expressed the hope that it would take its place alongside the Magna Carta and the Bill of Rights. In 1956 Winston Churchill published the first volume of his History of the English Speaking Peoples, in which he glorified Anglo-American “brotherhood,” “destiny,” and “empire” by reverent references to childhood memories of the Magna Carta.

Some have looked at the historical origins of the Magna Carta to challenge its mythical status. Geoffrey Robertson writes, “The appearance of ‘rights’ as a set of popular propositions limiting the sovereign is usually traced to the Magna Carta in 1215, although that document had nothing to do with the liberty of individual citizens: it was signed by a feudal king who was feuding with thuggish barons, and was forced to accede to their demands.”

But Robertson is mistaken as well. In fact the Magna Carta was not signed-- there is no evidence that King John could write. The real question is who traces rights to the Magna Carta and what are the rights? There is, I posit, a narrow, conservative interpretation of the Magna Carta and a more radical one that concerns individual citizens and commoners. The former, inscribed on a granite plinth by the American Bar Association, stresses “freedom under law” (my italics); the latter stresses authority under law—it extends beyond protections from state power and, deeply rooted in the experiences of working people, offers rights of subsistence to the poor.

Robertson continues, again misreading history, saying that the Magna Carta “limited the power of the State (in a very elementary way, since the King was the State), and secondly it contained some felicitous phrases which gradually entered the common law and worked their rhetorical magic down the centuries.” To call the “felicitous phrases” magic is to overlook the struggle in the streets, the struggle in the prisons, the struggle in the slave ships, the struggle in the press, the struggle in Parliament over its interpretation.

Runnymede and the Crusades

In the years leading up to the drafting of the Magna Carta, events in the Church and in England ran parallel. The pontificate of Innocent III (1198–1216) corresponded to the reign of King John of England (1199–1216). The Fourth Crusade was launched in 1204. Constantinople was sacked; only the bubonic plague put an end to the Christian atrocities. That same year King John lost Normandy. Raising money to recover Normandy and to join the crusade, he oppressed the barons with scutage (tax paid by a knight in lieu of military service), the selling of women (John made a regular traffic in the sale of wards, maids of 14 and widows alike), forest stealing, and taking children hostage for ransom (he slaughtered 28 sons of Welsh hostages).

In 1208, the year the pope launched a brutal crusade upon the heretics of Albi in the south of France, he placed King John under interdict, and in the following year excommunicated him and his kingdom. King John made up by surrendering his kingdom as a feudal fief to the pope.

In 1214 King John’s ambitions in France were again dashed at the battle of Bouvines. In February 1215, short on funds and trying to control the rebellious barons, John made a vow to lead a crusade to the holy land to take it from the Moslem infidels. By becoming “a warrior of God” he hoped to enjoy immunities protecting him from the barons.

The ruse was too late. In May the barons took London, and withdrew their homage and fealty. In the middle of June, 1215, on a meadow, Runnymede, along the River Thames the rebellious barons and King John promised on oath to be faithful to one another along the lines of the 63 chapters of the Magna Carta. The 63 chapters of liberties to the “freemen of England” were sealed, and peace was made viva voce with renewed homage. The charter protected the interests of the Church, the feudal aristocracy, the merchants, Jews, and, in provisions that are often overlooked it assumed a commons—it acknowledged the lives of the commoners. To see how it did this, let’s pause to look over some of the things it actually said.

A Few Chapters from the 63

The provisions of the Magna Carta reveal among other things the famous chapter 39 from which habeas corpus, prohibition of torture, trial by jury, and the rule of law are derived:

Chapter 39: No free man shall be arrested or imprisoned or disseised or outlawed or exiled or any way victimized, neither will we attack him or send anyone to attack him, except by the lawful judgment of his peers or by the law of the land. Chapter 40: To no one will we sell, to no one will we refuse or delay right or justice.

We also see that “one of the first great stages in the emancipation of women is to be traced” to the Magna Carta.5 The most valuable individual provisions in the eyes of the only contemporary chronicler (a minstrel attached to Robert of Béthune) are those treating the disparagement of women:

Chapter 7: A widow shall have her marriage portion and inheritance forthwith and without difficulty after the death of her husband . . . Chapter 8: No widow shall be forced to marry so long as she wishes to live without a husband . . .

It put a stop to the robberies of petty tyrants:

Chapter 28: No constable or other bailiff of ours shall take anyone’s corn or other chattels unless he pays on the spot in cash for them . . .

Other chapters have to be understood in terms of the energy ecology. It opposed privatization of common resources. Thus, chapter 33 refers to a common right of piscary:

Henceforth all fish-weirs shall be cleared completely from the Thames and the Medway and throughout all England, except along the seacoast . . .

And chapters 47 and 48 refer to the common rights of the forest:

Chapter 47: All forests that have been made forest in our time shall be immediately disafforested; and so be it done with river-banks that have been made preserves by us in our time [and] Chapter 48: All evil customs connected with forests and warrens, foresters and warreners, sheriffs and their officials, river-banks and their wardens shall immediately be inquired into in each county by twelve sworn knights of the same county who are to be chosen by good men of the same county and within forty days of the completion of the inquiry shall be utterly abolished by them so as never to be restored. . . .

Chapters 39 and 40 are well-known, while 47 and 48, if noticed at all as part of the Magna Carta, are often discarded as feudal relics or English peculiarities. Looking at them more closely will give us a clue to the more expansive interpretation of the Magna Carta, but first we need to understand that the woods of that time were as important to the people as oil is in our time.

From Wildwood to Wooded Pasture to Political Forest

“Grey, gnarled, low-browed, knock-kneed, bowed, bent, huge, strange, long-armed, deformed, hunchbacked, misshapen oakmen . . .” This is a personification of the massive trunks and small crowns of the ancient oaks of Staverton. These old trees are the result not of the wildwood (of the Ice Age 13 millennia before) but of wooded pasture.

The wooded pasture is a human creation, the result of centuries of accumulated woodmanship, carefully planned so the same land could be used for trees and grazing animals. Coppice (trees like ash and elm that grow again from the stump) provided an indefinite succession of crops of poles (for making rakes, scythe-sticks, surplus used for stakes and firewood); sucker (trees like aspen and cherry that grow again from the root system) formed patches of genetically identical trees called clones; and pollard (trees that are cut six to 15 feet above the ground, leaving a permanent trunk called a bolling), sprouted like coppice stool but out of reach of the livestock.6

In Anglo-Saxon times wooded commons were owned by one person, but used by others, the commoners. Usually the soil belonged to the lord while grazing belonged to the commoners, and the trees to either. Whole towns were timber-framed. The strut and beam of cottages, the curved wooden rafters, the oak benches of worship. Wheels, handles, bowls, tables, and stools were wood. Wood was the source of energy.

The Norman Conquest in 1066 disrupted the customs of the forest which had prevailed for centuries. William and his Norman conquerors (“a French bastard with his armed banditti,” said Paine) brought innovations in eating utensils (the fork), a new language (law French), new people (the Normans, the Jews), and different animals (wild boar and deer, the royal game). The forest became a legal rather than a physical entity. The king reserved it exclusively for sport.

The forest became the supreme status symbol of the king, from which he could give presents of timber and game. Henry III sent his old nurse, Helen of Winchester, underwood for her fire. From the Forest of Dean the king took minerals, underwood, timber, and red and fallow deer. A haunch of venison was a gift that money could not buy. Henry III for Christmas dinner in 1251 had 430 red deer, 200 fallow deer, 200 roe deer, 1300 hares, 450 rabbits, 2100 partridges, 290 pheasants, 395 swans, 115 cranes, 400 tame pigs, 70 pork brawns, 7000 hens, 120 peafowl, 80 salmon, and lampreys without number.

In July 1203, at the height of the crisis in Normandy, King John instructed his chief forester, Hugh de Neville, to sell forest privileges “to make our profit by selling woods and demising assarts.” The king wanted to reward followers with endowments, lands “to raise men from the dust.” The mounted knight was a powerful unit of war, terrifying, expensive, and ubiquitous. Thus the growth of state power, the ability to make war, and complaints against the monarchy arose from the enclosing of land, or afforestation.

J. R. Madicott writes that the principal grievances behind the Magna Carta were two: “the malpractices of the sheriff and the extent of the forest. . . . Most physical Forests were also commons and had common-rights dating from before they had been declared Forests.” In 1215 there were 143 forests in England. Hence, the demand to disafforest in chapter 47 of the Magna Carta. After 1216 few forests were enclosed.

How was the extent of afforestation known? How was the Magna Carta’s disafforestation to be accomplished? There were no cartographers, no global positioning system, apart from the tramp of human feet in solemn perambulations. They perambulated their constitution by walking the boundaries, observing each stone, each tree. How was this struggle lost to history? We can trace today’s myth of the Magna Carta to the English Revolution.

Edward Coke’s “Fine Fetch”

Four centuries after 1215, the 17th-century crisis of political legitimacy began. English reformers wished to show that they were not innovators but rather restorers of ancient and true ways that had been lost after 1066. From the Tudor autocracy at the beginning of the century to the Whig oligarchy at the end, and passing through civil wars among the “four kingdoms” and the bourgeois revolution in between—the crisis was conducted in terms of the Magna Carta.

Edward Coke was the hero of the Magna Carta’s chapter 39 and its myth-maker. Dismissed as Chief Justice of King’s Bench, imprisoned in the Tower, he helped draw up the Petition of Right of 1628. Charles I heard he was working on a book on the Magna Carta. As Coke lay dying his chambers were ransacked and his manuscripts confiscated. At the beginning of the English Revolution, Parliament ordered their recovery, and they were published posthumously in 1642.

Coke’s interpretations focused on chapter 39, which is declaratory of the old law of England, ancient and fundamental. He linked it to Parliament and “due process of law.” He found that it prohibited torture. It upheld habeas corpus. It provided trial by jury. It established rule by law.

Royalists and absolutists did not agree. Robert Filmer and Thomas Hobbes rejected customary law, arguing that law is the command of the sovereign, nothing more, nothing less. In 1667 Lord Chief Justice Keeling aroused the wrath of the Commons by responding to a member of a Somerset jury who referred to the Magna Carta, “Magna Farta, what ado with this have we?” President George W. Bush made a similar noise when he told the National Security Council in January 2003, “I do not need to explain why I say things. That’s the interesting thing about being President.”

Part of the English Revolution was precisely to make sovereignty “explain things.” Coke did so by a new narrative. “Sir Edward Coke doth not care to hear of the Feudal Law as it was in use at this time, and hath a fine fetch to play off the Great Charter and interpret it by his Modern-law . . .” Anyone familiar with wave mechanics knows that the “fetch” of a wave derives its power from the distance it has traveled, not from the particular matter that it happens at any one time to be passing through. The derivation of habeas corpus, trial by jury, rule of law, and the prohibition of torture from chapter 39 is a fetch that has been dear to Western governments since the 17th century. It restrains the summit of power as well as its lesser heights, from dog-catcher to commander-in-chief, from the chatelain of the high keep to the foreman on the shop floor, from the pope to the local D.A., from the elementary school principal to the living-room bully. Yet the figurative language of this interpretation hides the actualities of the labor process, and it removes the human agency of those workers; the social and economic realities acknowledged in the Magna Carta are totally occluded.

Coke’s 17th-century interpretation shaped the Magna Carta’s global reach. It took on an Atlantic dimension after Coke helped to draft the royal charter of the Virginia Company in 1606. Other royal charters establishing English colonies in America also alluded to the Magna Carta (Massachusetts in 1629, Maryland in 1632, Maine in 1639, Connecticut in 1662, Rhode Island in 1663). While those colonists used the Magna Carta against the authority of the crown (New York’s dispute of 1680, James Otis in 1764), they ignored its forest provisions altogether when it came to their own intrusions into the woodlands of the indigenous peoples. With Coke’s interpretation the Magna Carta became an instrument of both colonial independence and acquisitive empire.

The Levellers Embody the Magna Carta

Coke’s chapter 39 as it spread through the empire can be contrasted with its interpretation by commoners in the 17th century. As the early Stuarts sought to intensify their exploitation of forest resources during the transition to coal, they met objections, not from barons so much as from the common people, for the common people were often people with rights in the commons.

In response the Levellers fought for “the right, freedome, safety, and well-being of every particular man, woman, and child in England.” They argued that Parliament may not act against the fundamental law of the land as expressed in the Magna Carta. It became “the Englishman’s legall birthright and inheritance.” “Free-Born John” Lilburne based his arguments on the Magna Carta; he said “the liberty of the whole English nation” is in clause 39.

Even those who were not commoners in this strict meaning but who had been more or less fully expropriated to become proletarians in the towns and port listened to the radicalizing of the Magna Carta. In desperate times anything seemed possible. In Lincolnshire people opposing encroachments on rights of commons emphasized the law of the land as the basis of their claim.7

In July 1649 Winstanley appealed to the House of Commons, “Desiring their answer: whether the Common People shall have the quiet enjoyment of the Commons and Waste Lands.” “The best lawes that England hath, [viz., the Magna Carta] were got by our Forefathers importunate petitioning unto the kings that still were their Task-masters; and yet these best laws are yoaks and manicles, tying one sort of people to be slaves to another; Clergy and Gentry have got their freedom, but the common people still are, and have been left servants to work for them.8

Could the Magna Carta help the common people? Let’s return to its origins.

The Peace of September 11 and the Widow’s Estovers

On leaving Runnymede, scarcely had the mud dried on his boots when King John resumed war upon the barons and began to plot with the pope against them. Innocent III vacated the Charter as null and void and prohibited the king from observing it. As far as the pope was concerned, the barons of England were as bad as the Moslem Saracens themselves. Louis, later to become king of France, invaded England at the barons’ invitation in May 1216. King John died in October. Between the death rattle of John and the minority of the new king, Henry III, only nine years old, the fate of the Magna Carta—indeed its whereabouts—was uncertain.

William Blackstone tells us that it was not until September 11, 1217, that France and England made peace, at an island in the river Thames near Kingston. Barefoot and shirtless, Louis was required to renounce all claim to the English throne and to restore the charters of liberties granted by King John. Not only did the treaty put an end to two years of civil war, but as the Victorian constitutional historian, William Stubbs, concluded, the treaty was “in practical importance, scarcely inferior to the charter itself.” While the charter served a treaty-like function during the baronial wars, its reissue in time of peace established it as a basis of government.

The survival of the original Magna Carta of King John thus depended on the peace of September 11, 1217. This is not all. In the following days the new king granted a new charter of liberties, based on the 1215 charter and “also a charter of the forest,” drafted in 1217. Unlike the 1215 version known to us, the final form of the Magna Carta was in fact comprised of two charters.

The charters were reissued together in 1225.9 They were published by being read aloud four times a year: at the feast of St. Michael’s, Christmas, Easter, and at the feast of St. John’s. They were read in Latin certainly, in French translation probably, and in English possibly. William McKechnie states, “it marked the final form assumed by the Magna Carta.”

By 1297 Edward I established the charters and directed that they become the common law of the land. Blackstone, who published a scholar’s edition of the charters in 1759 while working at Oxford University Press, writes, “There is no transaction in the antient part of our English history more interesting and important, than the rise and progress, the gradual mutation, and final establishment of the charters of liberties.” By the beginning of the 14th century, he concludes, “the final and complete establishment of the two charters, of liberties and of the forest, which from their first concession under King John A.D. 1215, had been often endangered, and undergone many mutations, for the space of near a century; but were now fixed upon an eternal basis.” In transition from treaty to law, there were notable changes. One of the mutations, occurring between 1215 and 1217, modified chapter seven, considerably expanding widows’ rights by adding the clause:

. . . and she shall have meanwhile her reasonable estover of common.”

What is “estover of common”? Coke explains, “When estovers are restrained to woods, it signifieth housebote, hedgebote, and ploughbote.” Botes do not imply a common wood; they could as well appertain to field or hedgerow. Firebote and hedgebote were quotas for fuel and fencing; housebote, cartbote, rights for building and equipment. Coke goes on to say estovers signify sustenance, aliment, or nourishment. Technically, then, “estovers” refers to customary gatherings from the woods; often they refer to subsistence generally. “True Freedom,” Winstanley would write, “lies where a man receives his nourishment and preservation.” The International Covenant on Economic, Social and Cultural Rights declares, “In no case may a people be deprived of its own means of subsistence.”

What happened between 1215 and 1217 to cause this clause to be inserted in chapter seven? The answer is war. France invaded. A political crusade was declared against England in 1216–1217. The Fifth Crusade against the Saracens had begun (Ibn Al-Athir wrote, “The entire Muslim world, men and territories, seemed likely at this moment to be lost to the East [the Tartars] on the one hand and the West [the Franks] on the other”).10

War produces widows; widows suffer economic hardship. The “mutation” of chapter 7 between 1215 and 1217 reflected this reality.11 Similarly the 1217 Forest Charter also acknowledged the common rights of the poor. Inasmuch as it protected the commons it was also, and to that extent, a prophylaxis from terror. The Assize of Woodstock (1184) permitted the poor to have their estovers, but only under stringent rules. McKechnie comments: “If the rich suffered injury in their property, the poor suffered in a more pungent way: stern laws prevented them from supplying three of their primary needs; food, firewood, and building materials.” In Stratford, a warden took a quarter of wheat “for their having paling for their corn and for collecting dead wood for their fuel in the demesne wood of the lord king.” Sometimes a local tyrant established a veritable reign of terror. Blackstone wrote that the Forest Charter “provided for a reduction in the severity of forest penalties and for the maintenance of the rights of those who had private woods within the forest; they were to enjoy full rights of pasture and fuel.” Consider some of its provisions:

Chapter One: And if he made his own wood forest it shall remain forest saving common of pasture and other things in that forest to those who were accustomed to have them previously.

Chapter Nine: Every free man shall agist his wood in the forest as he wishes and have his pannage.

Chapter 13: Every free man shall have the eyries of hawks, sparrow hawks, falcons, eagles and herons in his woods, and likewise honey found in his woods.

Chapter 14: [Foresters-in-fee may exact chiminage on carts in his bailiwick, or upon horses, of merchants who come to buy wood, timber, bark, or charcoal “to take them elsewhere to sell where they wish.”] Those, on the other hand, who carry wood, bark, or charcoal on their backs for sale, although they get their living by it, shall not in future pay chiminage.

Suppose, first, we treated these provisions as things of potential value despite feudal appearance. We can define chiminage as the transportation cost of taking energy sources to the consumer. Herbage is common of pasture. Pannage is the right to let the pigs in to get the acorns and beech-mast. Agistment permits livestock to roam in the forest. The Magna Carta is not a manifesto of the medieval commons, yet it refers to substantive customs of the wooded realm that supported a material culture.12

The widow’s estovers of common is thus the phrase that leads us to a completely different world in which we must use a subsistence perspective to understand the forces of production and the relations of reproduction.

The History of the Commons

The labor process is the bedrock of human experience, though it might take chauvinist expressions, especially in chauvinist times, as the historian George Sturt wrote just before World War I. “What was the earlier English understanding of timber, the local knowledge of it, the patriarchal traditions of handling it?” The wheelwright learned truths of wood through his fingers and hands. Whether in watching the keen, unhurried loading and unloading of experienced carters or observing the untiring, unreliable, unlettered sawyers at work, Sturt’s descriptions were inseparable from the ecology of soil and timber, and reminded him–this is the long view–that “the settling of this island had only started about fifteen hundred years earlier and was still going on.” Without raising the flag, Rackham, the Cambridge botanist, flatly states, “to convert millions of acres of wildwood into farmland was unquestionably the greatest achievement of any of our ancestors.”

J. M. Neeson, an authority on commoning, like Sturt, understood the uses of woods: lops and tops or snap-wood for the household, furze and weeds for fodder, bavins or sprays such as bakers and potters want for their ovens and kilns, where bean-stakes could be found, how hazel is for good sheepfolds, how to assemble a chimney-sweeping brush. The woodlands were a reservoir of fuel; they were a larder of delicacies; a medicine chest of simples and cures. Who enjoyed them? She writes, “The fuel, food and materials taken from common waste helped to make commoners of those without land, common-right cottages, or pasture rights. Waste gave them a variety of useful products, and the raw materials to make more. It also gave them the means of exchange with other commoners and so made them part of the network of exchange from which mutuality grew. More than this, common waste supported the economies of landed and cottage commoners too. It was often the terrain of women and children. And for everyone the common meant more than income.”13

This is the economy of uses, or the subsistence economy, or the economy of substances. Here is food, fire. Here is the human hearth, home. This is the economy, or labor of the household. Shelley asked, “What are thou Freedom?” and answered before considering justice, wisdom, or peace:

For the labourer it is bread,
And a comely table spread.
Thou art clothes, and fire, and food
For the trampled multitude.

In these histories of the commons social and temporal specificity undermines the universal pretensions of law. They also tend to see that law was an instrument of the self-interest of rulers against which the recalcitrance of the poor might express itself in the ballads of the wildwood, in taking from the rich to give to the poor, and in not submitting to command for commandments’ sake. They observe legal and religious responses to the struggle. A miner's trade unionist from the Forest of Dean expressed the religious response: “I believe in the sacred principle that God gave the earth to the human race for an eternal inheritance, not to be taken away by man-made laws; and the man or men who would attempt to rob us of our God-given natural rights, must incur the danger of revolution, or other modes of popular resistance.” The Yorkshire County rolls contain the name of the fugitive Robert Hod in 1226. Thus, the most famous of outlaws, Robin Hood, flourished at the moment of the Magna Carta.

Historians of the commons can help clarify the rights imputed to the Magna Carta at its time. If it truly is of another epoch, why bother? Can we give them “a fine fetch,” or an interpretation fully appropriate for today?

Consider the difference between common rights and human rights. First, common rights are embedded in a particular ecology with its local husbandry. Human rights are not. That is why they can so easily be rendered universal. For commoners, the expression from chapter 39, “law of the land,” refers not to the will of the sovereign. Commoners first think not of title deeds, but human deeds: how will this land be tilled? Does it require manuring? What grows there? They begin to explore. It is almost a natural attitude. Second, commoning is embedded in a labor process; it inheres in a particular praxis of field, upland, forest, marsh, coast. Common rights are entered into by labor. They belong to experience not schooling. Third, commoning is a collective endeavor as depicted, for example, in the many paintings of gleaning the harvest. Fourth, commoning, being independent of the state, is independent also of the temporality of the law and state. It’s much older. But this doesn’t mean that it’s dead, or pre-modern, or backward.

The Palimpsest of Petroleum

The etymology of the word “charter” comes from Greek meaning thick paper or parchment. When the writing on a parchment is erased, so that it can be used again, the result with the new words is called a palimpsest. This was not the fate of the Magna Carta. Something like it, however, has been the fate of the economy upon which it rested.

An economic palimpsest is one where instead of finding the older words on a parchment which had been only partially rubbed out for the new words, we find that the economy we thought belonged to a different stage of history has not been fully erased, and in fact contains knowledge ignored by the new economy. Suppose we compared them, as follows:

Food stamps Herbage
Social security Pannage
Medicare Turbary
Housing aid Piscary
Public education Chiminage
Unemployment insurance Estovers
Worker’s compensation Lops & tops
Health insurance Vert & venison
Small business loan Assart
Public libraries Agistment
Welfare Firebote

While the comparison takes us not to a golden age, it raises questions: Are the columns equally consistent with war, crusades, and acquisition of hydrocarbon energy? How does class struggle alter from column to column, in the role of the state, in the role of money? Which column tends best to the values of mutuality and equality?

In addition to the moral economists, Robin Hoods, and Levellers, let’s look at more familiar figures. As a boy Karl Marx picked berries at Easter time, a customary right in the town’s woods, and later he reported on the “theft” of wood by the Moselle peasantry that drew him to the critique of political economy. In exile and poverty he found recuperation in picnics upon Hampstead Heath, preserved by commoners’ struggles. William Morris nurtured body and soul among the grotesque, majestic hornbeams of Epping Forest, a commons of 700 years. In Morris’s iconography of nature a forest was the place where you both lost yourself and found yourself. At the end of the 19th century as forests around the planet succumbed to the maps, trade, and law of empire, the woods became a place of dreams of commonage, preserved as often as not in children’s books from The Jungle Book to The Wind and the Willows set on the river Thames only an oar’s pull from Runnymede.

The power to dream is not deracinated; it is part of recuperation and imagination.14 Roger of Asterby, local knight of Lincolnshire, envisioned conversations with Gabriel and St. Peter, who told him that inheritances should be restored to rightful owners and that justice should be without charge. “Whether as stimulant or a sedative such tales must have stirred the deepest wells of political consciousness in the most backward of backwoodsmen.” From them wrung the liberties of 1215.

In wartime, the soldier is promised the earth. Roosevelt and Churchill’s 1941 Atlantic Charter, envisioning a world after Nazi tyranny, promised four freedoms (freedom of speech, freedom of worship, freedom from want, freedom from fear). Churchill would later write that the Atlantic charter was not “applicable to coloured races in colonial empires.”15 So when the U.N. Human Rights Commission began work on its Declaration of Human Rights after the war, W. E. B. Du Bois led forces intervening on behalf of the colonized people of the world. His Color and Democracy and Behold the Land are implicit critiques of the division between human rights and common resources. For him the meaning of “human rights” was a totally different proposition to the millions who were colonial subjects rather than putative free citizens. Du Bois challenged the American authors of the Bretton Woods agreements establishing the International Monetary Fund and the World Bank: “seven hundred fifty millions of people, a third of mankind, live in colonies. Cheap labor and materials are basic to postwar industry and finances. Was this matter mentioned in any form at Bretton Woods?”16 The National Negro Congress in June 1946 petitioned the U.N., as drafted by Du Bois, “An Appeal to the World: A Statement on the Denial of Human Rights to Minorities in the Case of Citizens of Negro Descent in the United States of America and an Appeal to the United Nations for Redress.”

It grounds the entire discussion of human rights in material realities, beginning with the description of the Afro-American in class terms and arguing that the deliberate disenfranchisement of the Negro in the American South also deprived the working class of self-protection in the North. He wrote in full cognizance of English history. He observed that the federal government “continually casts its influence with imperial aggression throughout the world.” And even when a strong political leader is able to “make some start toward preservation of natural resources and their restoration to the mass of people” the effort cannot last long. In explaining his appeal to the world, he writes, it is “this great search for common ground.”17

The exclusion of the dreams of the 750 million Du Bois spoke for after World War II reflected the succession of the United States to Caesar’s imperial crown. Today, facing the unchecked power of empire we may go into the woods to fetch the Magna Carta completely, as it helps establish that, to quote Shelley, “the rights of man are liberty and an equal participation of the commonage of nature.”

While the Magna Carta is singular, an English peculiarity, its story is one of oppression, rebellion, and betrayal. It has become a story with global significance. We are commoners looking in at it from the outside. We have seen its history from the robber barons who became chivalric knights who became law lords who became “founding fathers.” Having studied their doings in the forest, in Palestine, in the law court, on the frontier, and now in Iraq, we have learned to be suspicious.

The Magna Carta awaits further interrogation, as begun by Subcommandante Marcos. It has more for us than we thought. It may yield us both radical and restorative sustenance. The American Bar Association’s monument, we remember, found the epitome of the Magna Carta in the phrase “freedom under law.” The modern authority concludes, “taken as a whole the Charter was a remarkable statement of the rights of the governed and of the principle that the king should be ruled by law,” and the Victorian authorities sum it up: “the King is, and shall be below the law.” Yet even this is incomplete. If an epitome is needed, let it be “widow’s estovers,” both ample and just. <

Peter Linebaugh’s The London Hanged: Crime and Civil Society in the Eighteenth Century has just been reissued in a second edition. Professor of history at the University of Toledo, he is also coauthor with Marcus Rediker of The Many-Headed Hydra.


1. Norimitsu Onishi, “As Oil Riches Flow, a Poor Village Rises Up,” New York Times, 22 December 2002.

2. Tuong Vi Pham, “Gender and the Management of Nature Reserves in Vietnam,” in Kyoto Review of Southeast Asia.

3. See particularly, “Midnight Notes,” Midnight Oil, Work, Energy, War, 1973–1992 (Autonomedia, 1992), 303–33.

4. Maria Mies and Veronika Bennholdt-Thomsen, The Subsistence Perspective: Beyond the Globalised Economy, translated by Patrick Camiller, Maria Mies, and Gerd Weih (New York: Zed, 1999).

5. J. C. Holt, Magna Carta (Cambridge Univ. Press, 1965), 46.

6. Oliver Rackham, The History of the Countryside (London: J. M. Dent and Sons, 1986).

7. Christopher Hill, The World Turned Upside Down: Radical Ideas during the English Revolution ( Viking Press, 1972), 41–44.

8. George Sabine, The Works of Gerrard Winstanley (Cornell Univ. Press, 1941), 303; W. Wilson Hayes, Winstanley the Digger: A Literary Analysis of Radical Ideas in the English Revolution (Harvard Univ. Press, 1979), 240–41.

9. The originals of the Charter of the Forest are in the Bodleian and Durham Cathedral, the regent’s seal in green, the papal legate’s in yellow.

10. Francesco Gabrieli, ed., Arab Historians of the Crusades (Univ. of California Press, 1969), 260.

11. In contrast to the war widows of World War II who had to manage without estovers of common but rather upon a pension of £1 a week, which hardly covered lodging, heat, and food, the War Widows Archive at Stoke-on-Trent (Staffordshire) was collected by Iris Strange as part of a campaign to alleviate the appalling condition of widows as late as the 1960s. See Janis Lomas, “So I Married Again,” History Workshop Journal 38 (Fall 1994), and Geoffrey Field, The British Working Class in Wartime, 1939–45, ch. seven (forthcoming).

12. Gareth Lovell Jones and Richard Mabey, The Wildwood: In Search of Britain’s Ancient Forests (London: Aurum Press, 1993).

13. J. M. Neeson, Commoners: Common Right, Enclosure and Social Change in England, 1700–1820 (Cambridge Univ. Press, 1993), 158–59.

14. Robin D. G. Kelley, Freedom Dreams: The Black Radical Imagination (Beacon Press, 2002).

15. Penny M. Von Eschen, Race against Empire: Black Americans and Anticolonialism, 1937-1957 (Cornell Univ. Press, 1997).

16. David Levering Lewis, W. E. B. Du Bois: The Fight for Equality and the American Century, 1919–1963 (New York: Holt, 2000), 504.

17. In describing the postwar panopoly of state power Nancy Peluso has emphasized the concept of the political forest. These were landscapes of racialization. They were a terrain of imperial law. They were created by the dispossession of foresters and by the expropriation of those enjoying common rights. She and her colleagues are conducting an historical excavation that yields a new perspective, namely that the 750 million of the colored and colonized were the true commons of the planet.

Originally published in the Summer 2003 issue of Boston Review

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