Ben_Meyers writes: Here is the first section of an essay in two parts by Peter Linebaugh. The second can be found here.

"MAGNA CARTA AND THE COMMONS, Or, How Bad King John Pretended to Launch a Crusade against Islam in order to better Conceal his Robbery of the People's Hydrocarbon Energy Resources which at the time (1215) took the form of Woodlands; and, Whether the Hydrocarbon Energy Resources which in our day (2003) take the form of Petroleum can be Restored to the "communa tocius terre," or not." *

Peter Linebaugh

Since 9/11 we have suffered losses of liberties derived from Magna Carta. Habeas corpus has suffered particularly. Justice by trial by jury has suffered a mounting, attack; the prohibition against torture wilts; and more and more domains of action fall outside the rule of law altogether. In the bill of particulars which we, the powerless, imagine will accompany the indictment of the usurper, George Dubya Bush, for the crimes of war and riches, reference may be made to Magna Carta. What is Magna Carta? A voice from the jungle helps to explain.

Hydrocarbon Energy Reserves: Transition from Wood to Oil

In one of his communiqués from the Lancandan jungle of central America Sub-commandante Marcos, the spokesman of the revolt of indigenous people that burst upon the world in 1994, referred, of all things, to Magna Carta. The brilliant post-modern revolt cited a tedious pre-modern source. The clue to Magna Carta lay upon the two winds. Marcos explains how the wind from above daily sucks out 92,000 barrels of oil, leaving behind "ecological destruction, agricultural plunder, hyperinflation, alcoholism, prostitution, and poverty," while, the wind from below causes the campesinos in Ocosingo 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 The ejido, or village commons, has been destroyed, and its legal protection, article 27 of the Mexican Constitution, repealed.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 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). The Americans plan to obtain 25% of their oil soon from Africa. Its engineers have widened Escravos River in the Bight of Benin, and this is destroying the mangrove forest and the village of Ugborodo. They can no longer hew wood for fuel or draw clean water for drink. Prostitution is the only "decent-paying job for a woman."[1] Woods, forests, and mangrove are destroyed. Propane, gasoline, kerosene are substituted. As a result of this 'advance,' the people are expropriated.

In the upland hamlets of Vietnam women collected firewood, bamboo shoots, medicinal plants, and vegetables from forest areas. Some of these products were sold locally, most were used directly. "Broom grass" makes charcoal in Trang Tri. Rice and cassava are food stables and both are obtained by "swidden" farming (swidden = a Yorkshire dialect term for land that has been cleared by slashing and burning the vegetation cover). Free-range domesticated animals provide sources of protein. The 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]

The story is American as well. In the Adirondacks of New York the expropriation of the use of forest products from those who lived in the mountains took the guise of conservation. Sports hunting, hiking, mountaineering, and private forest reserves were the excuses for the criminalization of customary uses of forest fuels. In his private park Rockefeller privatized fishing, hunting, and public pathways. The authorities "endeavored to strike terror, as it was, into the people who were trespassing in this way." [3] In 1903 40,000 acres were destroyed by suspicious fires.

In Mughal India, Akbar the Great accounted the cutting down of forests a major achievement of his advance into Kashmir. The clearing of forests with subsequent settlement by cultivators brought with it the discourse of property -- proprietorship, tenants, criminals. [4] The colonial government declared reserve areas in Andhra and its porambokes, and dharmakhandams (or community common lands), and asserted its control over collection of fuel, leaf manures for composting, and wood for agricultural implements. [5] A huge rise in wood thefts preceded the national upsurge of 1919-20. A nationalist song from the time:

Three hundred years back

Company man descended

You have kept quiet

He robbed the whole nation

He claims all forests are his

Did his father come and plant?

From these stories three tendencies emerge. First, as an aspect of "the new enclosures," planetary woodlands are being destroyed in favor of commercial profit. [6] Second, petroleum products are substituted as the base commodity of human reproduction and world economic development. Third, commoners are expropriated. Michael Watts has dubbed as "petro-violence" the terror, dislocation, separation, poverty, pollution associated with petroleum extraction. [7] The U.S.A. intensifies all of these tendencies by war. In Iraq the Basra oil field development has quite exterminated the ecology of 'the people of the reeds.'

The indigenous voice from the jungle suggests Magna Carta concerns both juridical rights of the accused and the extraction of hydrocarbon energy resources. How can this be? I shall show that Magna Carta is a source of both political rights in restricting the autocratic behavior of a bad King and a confirmation of common rights in restoring to commoners their subsistence usufructs.

Magna Carta and Human Rights

For eight centuries Magna Carta has been venerated. "It was born with a grey Beard," Samuel Johnson said. The Massachusetts Body of Liberties (1641), the Virginia Bill of Rights (1776), the fifth and fourteenth amendments to the U.S. Constitution quoted its language. [8] This amounts to a demi-millenium, twenty generations, of scholars and scoundrels, judges and jackasses, fiddling with diplomatics, palaeography, translation, interpretation, and application.

The story of the 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 bourgeois state. 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 Magna Carta. [9] In 1957 the American Bar Association erected a phallic-like plinth at Runnymede with the words cut in granite, 'freedom under law.'

Eleanor Roosevelt in her 1948 speech to the UN General Assembly urging it to adopt the Universal Declaration of Human Rights, expressed the hope that it would take its place alongside Magna Carta and the Bill of Rights. [10] In the 20th century political rights tended to be separated from economic rights. The separation suited both sides in the Cold War; each side could claim special protection of one or the other, the Communists economic rights, the Capitalists political rights. In 1939 Jack Lindsay and Edgell Rickword wrote a Handbook of Freedom for English soldiers to take into battle. [11] It refers to the Great Charter on the second line. "The freedom we possess had to be won by centuries of endeavour, as the land itself was wrested from forest and swamp..." However, since many of the freedoms were in and of the forest, the possession of freedom depended on its preservation rather than its destruction. The exception in the mid-20th century to this separation of politics and economics was in the Coloured, or Colonial, parts of the world -- Asia, Africa, Latin America. These were the true commons of the 20th century, "people the color of the earth" as Marcos puts it.

Magna Carta contains an emergency brake on accelerating state despotism. The handle for the brake is Chapter 39. If we are so choosy about which chapters we take and which we don't, the brake-handle snaps and so do we, headlong into despotism. Geoffrey Robertson writes, "The appearance of 'rights' as a set of popular propositions limiting the sovereign is usually traced to 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." [12]

Magna Carta was not signed: there is no evidence that King John could write. Then the passive voice: who traces rights to Magna Carta? There is, I posit, a bourgeois interpretation and there is a radical one, and the radical one did concern individual citizens and commoners. The granite interpretation stresses freedom under law; the popular interpretation stresses authority under law.

Robertson continues, 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.

In contrast to the granite interpretation, we are given an evanescent interpretation with undertones of superstition and romance. Take Schama, "But for once, England didn't want an Arthur. It had Magna Carta instead. And that, it was hoped, would be Excalibur enough." Monty Python explains.

Arthur. I am your king.

Woman. I didn't know we had a king. I didn't vote for you.

Arthur. People don't vote for king.

Woman. How did you become king?

Arthur. The Lady of the Lake. Her arms clad in the purest shimmering samite held aloft Excalibur from the bosom of the water signifying by divine authority that I, Arthur, was to carry Excalibur. That is why I am your king.

Man. Listen. Strange women lying in ponds distributing swords is no basis for a system of government. Supreme executive power derives from a mandate from the masses, not from a farcical aquatic ceremony.

Arthur. Be quiet.

Man. You can't expect to wield supreme executive power just because some watery tart threw a sword at you.

Arthur. Shut up.

Runnymede and the Crusades

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 sixty-three chapters of Magna Carta. Behind the event lay powerful forces of Pope and Emperor, dynastic intrigues of France and England, wicked deeds of pogrom and bigotry in the name of God Almighty, and the disintegrating effects of the money economy.

Events in the church and in England ran parallel. The pontificate of Innocent III (1198-1216) corresponded to the reign of John (1199-1216). The Fourth Crusade was launched in 1204. Constantinople was sacked with such terrors that only the bubonic plague put an end to the Christian atrocities.

The same year King John of England lost Normandy. Raising money to recover Normandy and to join the crusade, King John 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 fourteen and widows alike), forest stealing, and taking children hostage for ransom (he slaughtered 28 sons of Welsh hostages).

If the crusades against Islam were bids to control the commercial economy of the east, then the crusades against heretics were means of terrorizing the landless population of the west. In 1208 the Pope launched an exterminating crusade upon the heretics of Albi, in the south of France. They opposed the Church, its hierarchy and patriarchy. Believing that the world around them was diabolical, they opposed procreation as an unkindness. The children of the Children's Crusade of 1212 were sold into slavery. At the Fourth Lateran Council the church doctrine was declared and heresy defined. Jews were required to wear identifying badges. The groundwork of the ruthless Inquisition was laid.

Meanwhile, against John's will, the Pope appointed Stephen Langton Archbishop of Canterbury. In 1208 the Pope 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 John's ambitions in France were dashed at the battle of Bouvines. Philip of France now looked at England. In February 1215 king John responded by making a vow to lead a crusade to the holy land to take it from the Moslem infidels. Becoming 'a warrior of God' he enjoyed immunities protecting him from the barons. Hindley comments, "the glow of virtue could hardly have concealed the grin of the cat." Blackstone wryly commented, "it being, according to the romantic superstition of the time, to the highest degree profane and irreligious to offer any personal insult to such heroical votaries..."[13] The ruse was too late.

In May the barons took London, and withdrew their homage and fealty. In June King John and the barons faced each other in armed camps at Runnymede. The 63 chapters of liberties to the "freemen of England" was 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 it assumed a commons, it acknowledged 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 Sixty-Three

Its provisions revealed a) the oppression of women, b) the aspirations of the bourgeoisie, c) the mixture of greed and power in the tyranny, d) an independent ecology of the commons, and e) 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.

The value of the individual provisions in the eyes of the only contemporary chronicler (a minstrel attached to Robert of Béthune) put first those treating the disparagement of women and the loss of life or member for killing beasts in the forest. [14]

* Chapter 7: A widow shall have her marriage portion and inheritance forthwith and without difficulty after the death of her husband...[15]

* Chapter 8: No widow shall be forced to marry so long as she wishes to live without a husband ...

We see that "one of the first great stages in the emancipation of women is to be traced" to Magna Carta. [16]

It was bourgeois. The London commune was established in 1191 whose oath was sworn, unlike the oath of homage, among equals. Magna Carta established the freedom of travel for merchants.

* Chapter 41: All merchants shall be able to go out of and come into England safely and securely and stay and travel throughout England, as well by land as by water.

It set weights and measures, the basis of the commodity form. Never far from Coke's thoughts, as he wrote, were "those two great pronouns, meum and tuum."

* Chapter 35: Let there be one measure for wine throughout our kingdom, and one measure for ale, and one measure for corn, namely 'the London quarter;' and one width for cloths whether dyed, russet or halberget, namely two ells within the selvedges. Let it be the same with weights and measures.

It both fleeced and protected the Jews who had been disarmed and then massacred at the coronation of Richard I.

* Chapter 10: If one who has borrowed from the Jews any sum, great or small, die before that loan be repaid, the debt shall not bear interest while the heir is under age, of whomsoever he may hold; and if the debt fall into our hands, we will not take anything except the principal sum contained in the bond.

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 ...

* Chapter 30: No sheriff, or bailiff of ours, or anyone else shall take the horses or carts of any free man for transport work save with the agreement of that freeman.

* Chapter 31: Neither we nor our bailiffs will take, for castle or other works of ours, timber which is not ours, except with the agreement of him whose timber it is.

Other chapters have to be understood in terms of the energy ecology. It opposed privatization. Thus,

* Chapter 33: Henceforth all fish-weirs shall be cleared completely from the Thames and the Medway and throughout all England, except along the seacoast

refers to a common right of piscary, while

* 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....

refers to the common rights of the forest. If noticed at all as part of Magna Carta (ignored by Churchill and Schama), chapters 47 and 48 are often discarded as feudal relics, English peculiarities, or irrelevancies of the heritage industry. [17] If we see woodlands as a hydrocarbon energy reserve, we may be willing to give the subject more than a condescending dismissal. We need to adopt a 'subsistence perspective.' "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 such a perspective. [18]

39 and 40 are well-known, the beaten path, whereas 47 and 48 definitely comprise the road less traveled. To comprehend them (disafforestation, evil customs) we need to understand that the woods were the hydrocarbon energy resource of the 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. The English oak is the result of millennnia of cattle, goat, and deer eating their more edible competitors. The grazing determines what species thrive. These old trees are the result not of the wildwood (of the ice-age thirteen millennia previous) but of wooded pasture.

The wooded pasture is a human creation, the result of centuries of accumulated woodmanship. A) coppice (grows again from the stump) -- ash and elm provide indefinite succession of crops of poles (for making rakes, scythe-sticks, surplus used for stakes and firewood); B) sucker (grows again from the root system) -- aspen, cherry forming patch of genetically identical trees called a clone; and C) pollard -- these are cut 6-15 feet above the ground leaving a permanent trunk called a bolling, sprouts like coppice stool but out of reach of the livestock. [19]

Wooded pasture: same land for trees and grazing animals. Wooded commons: owned by one person, but used by others, the commoners. Usually the soil belongs to the lord while grazing belongs to the commoners, and the trees to either -- timber to the lord, and wood to commoners. Whole towns were timber-framed. The strut and beam of cottages, the curved wooden rafters, the oak benches of worship. Then, wheels, handles, bowls, tables, stools, what-have-you, was wood. Wood was the source of energy.

With the Norman conquest ('1066 and all that') came innovations in eating utensils (the fork), a new language (law French), new people (the Normans, the Jews), different animals (wild boar and deer, the royal game). William and his Norman conquerors ("a French bastard with his armed banditti," said Paine) by-passed the customs of the forest which prevailed from Anglo-Saxon times. [20] The forest was a legal rather than a physical entity reserved to the Crown for sport; forests were not necessarily wooded. "The forest has its own laws, based, it is said, not on the Common Law of the realm, but on the arbitrary decree of the King." [21] Thus, chapter 47.

It was the supreme status symbol of the king. The king made presents of timber. Henry III sent his old nurse, Helen of Winchester, underwood for her fire. From the forest of Dean the king took minerals, underwood, timber, red and fallow deer. A haunch of venison was a gift that money could not buy, beyond price. Henry III for Xmas 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. [22]

The most important service the vassal provided the lord were arms. The mounted knight was a powerful unit of war, terrifying, expensive, and ubiquitous. The King wanted to reward followers with endowments, lands, 'to raise men from the dust.' 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.' [23] Thus the growth of state power, the ability to make war, and complaints against the monarchy arose from the power of afforestation. [24] Hence, the demand to disafforest, chapter 47.

The Domesday Book (1086) shows only about half English settlements possessed woodland. In 1215 there were 143 forests in England. Half of forests were wood pasture. "...most physical Forests were also commons and had common-rights dating from before they had been declared Forests." The park tradition dates from the Normans. 3000 parks by Magna Carta. Few forests were declared in England after 1216. Another authority writes that the principle grievances behind Magna Carta were two, "the malpractices of the sheriff and the extent of the forest." [25]

How was the extent known? How was disafforestation to be accomplished? There were no cartographers, no global positioning system, apart from the tramp of human feet in the solemn perambulations. They perambulated their constitution by walking the boundaries observing each stone, each tree. They may be compared to the planetary perambulations of 15 February 2003 and 22 March 2003 as marches to constitute peace.

On to section 2
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acknowledgements

I thank colleagues and comrades of Retort, Chelsea, Brooklyn, Midnight Notes, and particularly, Iain Boal, Michael Watts, George Caffentsis, Tracey Briggs, Deborah Valenze, and Michaela Brennan.

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

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

3.Karl Jacoby, Crimes Against Nature: Squatters, Poachers, Thieves, and the Hidden History of American Conservation (University of California Press: Berkeley, 2001), p. 50.

4.Chetan Singh, "Forests, Pastoralists and Agrarian Society in Mughal India," in David Arnold and Ramachandra Guha (eds.), Nature, Culture, Imperialism: Essays on the Environmental History of South Asia (Oxford university Press: Delhi, 1996), p. 25, 36.

5.Atluri Murali, "Whose Trees? Forest Practices and Local Communities in Andhra, 1600-1922," in Arnold and Guha. See al;so, Ramachandra Guha, The Unquiet Woods: Ecological Change and Peasant Resistance in the Himalaya (University of California Press: Berkeley, 1989).

6.2.See particularly, Midnight Notes, Midnight Oil, Work, Energy, War, 1973-1992 (Autonomedia: New Yoirk, 1992), pp. 303-333.

7.Michael Watts, "Petro-Violence: Community, Extrarction, and Political Ecology of a Mythic Commodity," in Michael Watts & Nancy Peluso, Violent Environments (Cornell University Press: Ithaca, 2001), pp. 189-212.

8.Alan Harding, A Social History of English Law (1966), p. 55.
9.Volume I, The Brith of Britain (Dodd, Mead & co., New York, 1956), pp. vii & xvi

10.Allida M. Black, Courage in a Dangerous World: The Political Writings of Eleanor Roosevelt (Columbia University Press: New York, 1999), p. 10.

11. Handbook of Freedom: A Record of English Democracy Through Twelve Centuries (Lawrence & Wishard: London, 1939), vii.

12.Geoffrey Robertson, Crimes Against Humanity: The Struggle for Global Justice (The New Press: New York, 1999), p. 2-3. See also, Anne Pallister, Magna Carta: The Heritage of Liberty (Oxford, 1971).

13.Geoffrey Hindley, The Book of Magna Carta (Constable: London, 1990). See Blackstone's The Great Charter and the Charter of the Forest (1759), p. xi.

14.His Histoire des ducs de Normandie et des rois d'Angleterre, though composed in 1220, was not published until 1840. The four types of disparaged husbands were lunatics, villeins, cripples, and impotent.

15.Harry Rothwell (ed.), English Historical Documents, vol. III, 1189-1327 (Oxford, 1975).

16.Holt, p. 46.

17. "establishing principles that the king could not levy taxes without consent of his legislature or Parliament..." E.D. Hirsh, Jr, et al, A New Dictionary of Cultural Literacy: What Every American Needs to Know (Houhgton Mifflin 2002).

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

19. The History of the Countryside (London 1986).

20.Maddicott, p. 37.

21.P. 72

22.Rackham, p. 119.

23.J.C. Holt, Magna Carta (Cambridge, 1965), p. 52.

24.Nancy Lee Peluso and Peter Vandergeest, "Genealogies of the Political Forest and Customary Rights in Indonesia, Malaysia, and Thailand," The Journal of Asian Studies, vol. 60, no. 1 (August 2001), pp. 761-812.

25. J.R. Maddicott, "Magna Carta and the Local Community," Past & Present, 102 (February 1984), p. 27.

Go to Part II.