Peter Linebaugh: Magna Carta and the Commons, part two.

Click here for the first part of this article.

Edward Coke's "Fine Fetch"

Four centuries later the 17th century crisis of political legitimacy began. 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 Magna Carta. Edward Coke was the hero of Magna Carta's chapter 39 and its myth-maker. [26] 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 Magna Carta. As Coke lay dying, his chambers were ransacked and his manuscripts were confiscated. At the beginning of the English Revolution Parliament ordered their recovery and they were published posthumously in 1642.

English reformers wished to show that they were not innovators but rather restorers of ancient and true ways which had been lost in 1066. Hence, the power of the theory of the Norman Yoke. [27] Coke's interpretations asserted that chapter 39 is declaratory of the old law of England, ancient and fundamental. He linked it to Parliament. He included the expression "due process of law." He found that it prohibited torture. It upheld habeas corpus. It provided trial by jury. It established rule by law. Thus "the history of the document is a history of repeated re-interpretation." The Victorian William Stubbs concluded, "The whole of the constitutional history of England is a commentary on this charter." [28]

Royalists and absolutists did not agree. Filmer and Thomas Hobbes rejected customary law. 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 Magna Carta, "Magna Farta, what ado with this have we?" President Bush made a similar noise when he told the National Security Council, "I do not need to explain why I say things. That's the interesting thing about being President." [29]

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 no torture from chapter 39 is a fetch dear to Eleanor Roosevelt and Coke alike. In contrast to the swift sword of justice, Magna Carta is a broad shield against the blows of state. It restrains the summit of power and the Foucauldian ridges and peaks, 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.

Brady held that the charter springs from the "private ambition of selfish barons," and cannot apply to humble men and women. Although "freemen" is often the subject in the 63 chapters, the term is given a technical meaning depending on real estate. The charter made no difference to the majority of English people who "were as much Hewers of Wood and Drawers of Water, as truly vassals and Slaves after, as before this Great Charter." [30] Hewers of wood and drawers of water have Biblical connotations to enslavement and ethnic inferiority.

The labors of the woodman or the water carrier are ignored; their struggles are unknown; their victories unacknowledged: history from below is banished. The figurative language hides the actualities of the labor process, and it removes human agency of those workers, and the social and economic assumptions acknowledged in the Magna Carta are totally occluded. This view was perpetuated in the grandiloquent rodomontade of Winston Churchill, and fifty years later copied in the slangy TV glamour of Schama.

Magna Carta took on an Atlantic dimension. While John crusaded in the 13th century against the Moors in Palestine, the Stuarts and Oliver Cromwell in the 17th century organized "blackamoors" into transatlantic slavery. Coke helped to draft the royal charter of the Virginia Company in 1606. The royal charters establishing other English colonies in America alluded to Magna Carta (Massachusetts in 1629, Maryland in 1632, Maine in 1639, Connecitcut 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. Thus, Magna Carta became an instrument of both colonial independence and acquisitive empire.

The Levellers Embody Magna Carta

The 'crisis of the 17th century' was also a crisis of forestry. A transition to coal had begun in the history of hydrocarbons. The early Stuarts sought to intensify their exploitation of forest resources and 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.

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 ports -- the true hewers of wood and drawers of water - such people too listened to the radicalizing of the Magna Carta. In desperate times anything seemed possible. The Levellers were fond of a liberty-loving 13th century treatise by a London fishmonger, Andrew Horn's The Mirror of Justice and with gleeful satisfaction quoted the statistic that King Alfred hanged forty-four unjust justices. Cromwell's Council of State was informed in 1654, "the principal end" of enclosure of forests "is advantage to husbandry and tillage, to which all commons are destructive." In Lincolnshire people opposing encroachments on rights of commons emphasized the fundamental law of the land as the basis of their claim. [31]

Coke's chapter 39 can be contrasted with the Levellers. The goal of the Levellers was 'the right, freedome, safety, and well-being of every particular man, woman, and child in England.' [32] They argued that Parliament may not act against fundamental law as expressed in Magna Carta. It became 'the Englishman's legall birthright and inheritance." "Free-Born John" Lilburne based his arguments on Magna Carta; he said "the liberty of the whole English nation" is in clause 39. William Walwyn argued that Lilburne overstressed Magna Carta which far from being the epitome of liberty was a grudging minimum extracted from an unwilling conqueror. [33] Richard Overton, too, at least in 1646, followed this dismissal, though after the regicide and Cromwell's crack-down, he reversed himself, and practiced spectacular CD in the roadway.

He and his wife were dragged to prison. "...they would have forced me along up the hill on my feete, yea, they intreated me, but at that time I was not minded to be their DRVDG, or to make use of my feet to carry the rest of my body to the goale, therefore I let them hang as if they had been one of my own, or like a couple of farthing Candles dangling at my knees, and after they had dragged me in that admireable posture a while, the one took me very reverently by the head, and the other as reverently by the feete, as if he had intended to have done Homage to His Holinesses great Toe, and so they carried me." He was dragged to Newgate "by the head and shoulders ... as if I had been a dead Dog," clutching in his hands Coke's Second Institute upon Magna Carta. "I clapped it in my Armes, and I laid my self upon my belly, but by force, they violently turned me upon my back, then Briscoe (just as if he had been staving off a Dog from the Beare) smote me with his fist, to make me let go my hold, whereupon as loud as I could, I cryed out, murther, murther, murther. And thus by an assault they got the great Charter of Englands Liberties and Freedoms from me; which I laboured to the utmost of power in me to preserve and defend, and ever to the death shall maintain, and forthwith without any warrant poore Magna Charta was clapt up close prisoner in Newgate, and my poore fellow prisoner derived of the comfortable visitation of friends..." [34]

Thomas Tany was afflicted with a speech impediment. He posited a radical opposition between things and words, and tried to communicate by action rather than words. He became influenced by the alternativists of the day, those who thought and lived as though another world were possible, such as the English mystical followers of Jacob Boehme, Everard the Digger, Abiezer Coppe, the ranter, and the radical antinomian Lodowicke Muggleton. Generally homeless, Tany pitched his tent where he might in and about London. Scandalously he burned the Bible along with a sword, pistols, and a saddle in St George's Fields, Lambeth, saying they were the idols of England. Imprisoned for blasphemy, he had "caused a great Lock and long chain to be put on his Leg ... as a signal of the people of England's Captivity." He died at sea in an attempt to recover Jerusalem for the true Jews, those who "feed the hungry, clothe the naked, oppress none, and set free them bounden."

Writing as "a commoner of England," he published The Nations Magna Carta (1650). [35] His historical epistemology depends on a knowledge of roots; hence, making up new words and developing etymologies for Hebrew words. [36] He appealed to two sciences of the 17th century, linguistics and mathematics. We are liable to think "origins" when we read "roots." However, roots may also stem from rhizomes which have the characteristic of sending out leaves. The 1649 conjuncture of regicide, Leveller defeat, Irish invasion, Jamaican expedition, seizure of the estuary of river Gambia, brought about reversals, modifications, and realities which required new words of description. [37]

"He cannot properly be said to be that is unradaxed; That is stands not in and upon the foundation that gives a being to them all, and us all, that is Magna Carta, and the petition of right." "Now know that your being and my being [are] in that right of rights. Nay that divine right intendant to all: Its Essential, wherein your and mine is but one: Now comes the state of your being; being in right of, Nay in Magna Charta, that is your life, and mine, and the nations, all conjoined into one: Now in that one, all being right out of, and from that radax." Again, Monty Python can help.

Arthur. I am Arthur, King of the Britons.

Woman. King of the who?

Arthur. The Britons.

Woman. Who are the Britons?

Arthur. We all are. We are all Britons. I am your king.

Woman. I didn't know we had a king. I thought we were an autonomous collective.

Man. You are fooling yourself. We are living in a dictatorship, a self-perpetuating autocracy in which the working classes...

Woman. There you go, bringing 'class' into it again.

Man. That's what it's all about.

And, in fact, at the bottom of Tany's philosophy was a wage struggle: the soldier was not paid fully every penny his due which was 8d. per day. Manhood and the nation are dishonored. The truth is trod upon, or it runs to a corner. "To maintain the Law of the Land and pull down tyranny, this we were sworn to: Now what law is there preserved but all destroyed? for Magna Charta is the being of our being...." To Tany, Magna Carta is associated with the nation, the soldier, their wages, popular sovereignty, the commons, and truth.

Winstanley appealed to the House of Commons in July 1649, "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 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. [38] Could Magna Carta help the common people?

John Wilkes, like the Levellers before him and Francis Burdett after him, attempted to embody the Magna Carta, and enact it with his deeds. The tireless, courageous abolitionist, Granville Sharp based his political philosophy on Magna Carta. Major John Cartwright, the Parliamentary reformer, thought it "a glorious member of the superstructure." Thomas Wooler in The Black Dwarf wrote in 1817 "the country has boasted of being free because Magna Carta was enacted, when the least penetration would have taught us that Magna Carta was only enacted because our ancestors were determined to be free." The first and largest political movement of the industrial working class of England organized itself around a People's Charter and called itself the Chartists. Yet ambivalence is the frequent working class reaction to Magna Carta. Blake, for instance.

I wonder thro' each charter'd street

Near where the charter'd Thames doth flow

And mark in every face I meet

Marks of weakness, marks of woe.



In every cry of every Man,

In every Infant's cry of fear,

In every voice, in every ban,

The mind-forg'd manacles I hear.

The contradiction is in the first lines with the repetition of charter, because it refers to empire (the sailor's charts) and to capitalist business (the merchant companies), as well as to some of the liberties we've described. What are the manacles? Actually, there is a key to unlock them, a missing charter.

A Missing Charter Found

The story of the missing charter also belongs to the baronial revolt. The chronicler Roger Wendover in 1235 wrote that archbishop Langton discovered a charter in 1213 of "antient liberties" from the time of Henry I. This became the basis of Magna Carta and it was the grounding of a conjuratio, if not conspiracy, of Archbishop Langton and the barons against the King.

The charter was a material object with a physical history. [39] Coke's contemporary, Robert Cotton, collected the surviving original charters. (The story that he saved one from a tailor whose shears were about to transform the parchment into a pattern for a suit of clothes is probably apocryphal, though there would have been poetic justice to it, as the sheepskin, the epidermis of a creature once nourished in a commons, was turned into a means to make the tailor's "cabbage," a customary right to the excess cuttings.) At seventeen and three-quarters inches wide and eighteen and one quarter inches long, the term magna carta was not actually used until 1218 when it was used to distinguish it from the companion, but smaller, Charter of the Forest. [40]

There were two charters!

William Blackstone, the teacher of the Founding Fathers of the U.S.A., published a scholar's edition of both while working at Oxford University Press, The Great Charter and the Charter of the Forest (1759). [41] He was the first to print accurate texts of the Charter, as they were known to him. "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, emphatically stiled The Great Charter and Charter of the Forest; and yet there is none that has been transmitted down to us with less accuracy and historical precision." The Charter of Liberties, thus, includes the Charter of the Forest. [42]

We should quote the preface to Coke's Second Institute. "It is called Magna Charta, not that it is great in quantity, for there be many voluminious charters commonly passed, specially in these later times, longer than this is; nor comparatively in respect that it is greater than Charta de Foresta, but in respect of the great importance, and weightinsses of the matter, as hereafter shall appeare: and likewise for the same cause Charta de Foresta, is called Magna Charta de Foresta, and both of them are called Magnae Chartae libertatum Angliae." The Great Charters of English Liberty. They were published by reading aloud four times a year, at the feast of St. Michael's, Christmas, Easter, and feast of St. John's. They were read in Latin certainly, in French translation probably, and in English possibly.

The two charters were re-issued together in 1225. McKechnie states, "it marked the final form assumed by Magna Carta." [43] Subsequently, the two were confirmed together. After a law of Edward III in 1369 the two were treated as a single statute. Both charters were printed together at the commencement of the English Statutes-at-Large.

Blackstone noted that the archbishops of Canterbury and Dublin "apprehend the generality of chapter 48 endangered the very being of all forests "declaring that it was not the intention of the parties that the general words of the charter should extend to abolish such customs of the forest, without the existence of which the forests themselves could not be preserved." The forest clauses settled nothing. They provided grounds for renewal of war. The issue of disafforestation kept Magna Carta alive. [44]

On leaving Runnymede, scarcely had the mud dried on his boots, than 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 Magna Carta, indeed its whereabouts, was uncertain. France controlled half of England, yet, "The French invasion saved the forest Charter," says McKechnie. Both were nearly lost, and one is all but forgotten. Should it be remembered?

9/11 and the Widow's Estovers

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 to the charters of liberties granted by King John. The treaty put an end to two years of civil war. Its re-issue in time of peace established it as a basis of government, in contrast to its treaty-like function during the baronial wars. The Victorian constitutional historian, Stubbs, concluded of the Treaty of Kingston, "in practical importance, scarcely inferior to the charter itself." [45]

The survival of the original Magna Carta of King John thus depended on 9/11. This is not all. In the days following 9/11 a new charter of liberties was granted by the new king, and "also a charter of the forest." By 1297, Edward I established the two charters and directed that they become the common law of the land. Blackstone 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." One of those mutations, occurring between 1215 and 1217, modified chapter 7.

* Chapter 7: "... 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, hedgebote, quotas for fuel and fencing; housebote, cartbote, rights for building and equipment. Coke goes on to say estovers signifies sustenance, aliment, or nourishment. "True Freedom," Winstanley would write, "lies where a man receives his nourishment and preservation." Technically then estovers refers to customary gatherings from the woods; often they refer to subsistence generally. The International Covenant on Economic, Social and Cultural Rights declares "In no case may a people be deprived of its own means of subsistence." [46]

In continent after continent the human figure of the old woman bent from carrying a burden of sticks that she has gathered from the woodlands has been the quintessential figure of an epoch in reproduction. It is one of the oldest injunctions of written human history from the Mosaic codes in Deuteronomy (24:19-22) onwards. Wherever the subject is studied a direct relationship is found between women and the commons. The feminization of poverty in our own day has become so widespread precisely as the world's commons have been enclosed. The peasant women of Chiapas led the march to the assembly of Mexico City. The peasant women of India protested during the Battle of Seattle. Vandana Shiva, Maria Miess, Silvia Federici, Barbara Ehrenreich, to name a few, have described the integral, persistent, profound association between human mutuality and women of the commons.

What happened between 1215 and 1217 to cause this clause to be inserted in Chapter 7? The answer is war. The civil war continued. 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."). [47]

War was fought by mounted knights; it was fought by crossbowmen; it was fought by sailors; it was fought by many thousands of churls and villeins. Monstrous weapons of mass destruction hurled terror from the sky -- the mangonel cast mill stones, the trebuchet launched bombards, the catapult threw darts, the ballista resembled the bow, and the arbalest discharged all manner of missiles. They destroyed cities, blinded soldiers, burned houses, razed towns, maimed and mutilated people without discrimination. War produced death by pestilence, drowning, fire, as well as by direct hits from the sky.

War produces widows. The "mutation" of chapter 7 between 1215 and 1217 reflected this reality. In contrast to the war widows of World War II who had to manage without estovers of common but upon a pension of £1 a week which hardly covered lodging, heat, and food. [48] Remembering her mother, Maria Mies says of widows, "they clean up after the wars that the men wage against nature and foreign peoples." [49]

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." [50] In Somerset complaint was made "from the poor they take, from every man who carried wood upon his back, sixpence." 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. Inasmuch as the Charter of the Forest (1217) protected the commons it was also, and to that extent, a prophylaxis from terror. Blackstone wrote of the Forest Charter, "It also 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..."

* Chapter 1: 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 7: No forester or beadle shall henceforth make scotale or levy sheaves of corn, or oats or other grain or lambs or piglets or make any other levy.

* Chapter 9: 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.

Coke warns us not to let pass the least crumb or any syllable of this law

Suppose, first, we treated these crumbs, as things of potential value despite feudal appearance? Suppose, second, we gave them "a fine fetch," or an interpretation fully appropriate to our requirements? The Magna Carta is not a manifesto of the medieval commons. Yet, the substantive customs referred to in Magna Carta are to the wooded realm which supported a material culture whose structures and architectonics were composed of wood, not steel or plastic. "More than any other kind of landscape they are communal places, with generations of shared natural and human history inscribed in their structures," writes Richard Mabey. [51]

Defining chiminage as the transportation cost of taking energy sources to the consumer, the great oil spills of the Valdez or the Prestige, for example, violate the principle. 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.

We are in a position to make a terminological gesture towards the commoning economy. As part of the technology of pasturing animals -- herbage, pannage, agistment, and hedgebote. As aspects of arable tillage -- assarts and swidden. Reference to fuel -- firebote, lops and tops, snapwood, turbary. Reference to tools and building -- estovers, cartbote, housebote. Reference to transportation -- chiminage. The widow's estovers of common is thus the phrase that leads us to a completely different world, another epoch as it were, in which another terminology is required to understand the forces of production and the relations of reproduction. If it truly is of another epoch, why bother? Here a brief digression into the 'cultural wars' of late 20th century scholarship may help?

Commoning and 'The Warwick School'

The history of the commons is at an oblique angle to the nation-state and empire. But social historians have helped preserve the debates about the actual commons of woods and fields and their commoning. The author of Historical Essay on the English Constitution (1771) praised the pre-Norman local communities "founded on the common rights of mankind." Their attention was pre-capitalist, prior to the theory of privatization developed by John Locke who, it should be said, wrote little, if anything, about Magna Carta, and even when the subject postdated Locke, the universal utility of private property was not taken as sacrosanct.

The freedom movement against colonization in Africa, the Caribbean, and Asia during the 1960s caused a shake-up led by the New Left in the universities of the empire. The 'Ruskin school' at Oxford led to the history workshop movement and history from below. The 'Birmingham school' led to the movement of cultural studies. The 'Warwick school' was known for a) sympathetic understanding of the labor process, b) analytic descriptions of customary practices of production, agrarian and otherwise, c) a critique of the law. [52]

Ideas from 'the Warwick school' can clarify the human rights imputed to Magna Carta. I shall complete the document by no longer hiding the Charter of the Forest, and I shall complete its interpretation by a coeval temporality which is the genius of Coke's "fine fetch." This is in contrast to the stadial temporality which determined anachronism by a model of unbending sequence of inevitable stages of history. Here is an example from a history of Magna Carta with much to recommend it otherwise:

The granting of the petition of right should have relegated the Great Charter to the history books once and for all. It contained the essential freedoms thought to have been conferred or confirmed at Runnymede without the clauses, provisions, and guarantees relevant to an outdated feudal society and by the 1600s merely anachronistic. [53]

Such stadialism condescends to the past, despite the warnings against such an attitude expressed by Edward Thompson in The Making of the English Working Class (1963), a book which was a foundation text of the school.

One of its most important conceptual contributions, 'the moral economy,' owes its existence to an Irish historian of slavery, Bronterre O'Brien. It arose in the intellectual collision of an immigrant from an oppressed nation with the working class of the dominant nation. O'Brien was born in co. Longford in the aftermath of the defeat of the rebellion of '98 and the repressive Act of Union. He became a leader of the English Chartists. Political economy grew up in contention with the theories of the 'moral economy,' variously called paternalism, mercantilism, feudalism, and other stadialist put-downs. It has a powerful renewal in relation to 'the subsistence perspective' and 'weapons of the weak.' [54] The 'moral economy' customarily restrained greed in marketing by reference to ancient statutes, and thus belonged to a deep temporality. The 'moral economy' referred to the economic domain of circulation, not that of production, so, it did not as easily lend itself to discussion of the working class.

The labor process was the bedrock of human experience, though it might take chauvinist expressions, especially in chauvinist times, such as with George Sturt writing 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." This is a chronology that belongs to trees.

J.M. Neeson, the Warwick 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. On May Day not even the gentry could prevent people from getting their May-pole. 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." [55]

As for food, hazel-nuts and chestnuts could be sold in city markets; autumn mushrooms flavored soups and stews. Herbs for cooking and healing -- wild chervil, fennel, mint, wild thyme, marjoram, borage, wild basil, tansy. Salads and vegetables, wild sorrel, chicory, dandelion leaves, salad burnet, cats-ear, goats-beard, greater prickly lettuce, corn sow-thistle, fat-hen, and chickweed, yarrow, charlock and goosegrass. Elderberries, blackberries, bilberries, barberries, raspberries, wild strawberries, rosehips and haws, cranberries and sloes for jellies, jams, and wines.

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.

A third characteristic of 'the Warwick school' was the application of social and temporal specificity to the universal pretensions of law, and a tendency to see the law as 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 commandment's sake. 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 Magna Carta.

Chris Fisher showed that the 'Laws and Customs' of the miners in the Forest of Dean originated in the 13th century but were not written down until 1610 as the Book of Denis. By the 19th century as privatization and enclosure provoked resistance (the rolling fence, nocturnal encroachment) the Book of Denis was re-issued. A spokesman for the royal authorities spoke more truly than perhaps he knew when he described the Book of Denis as "that little book which they consider their Magna Carta." What authority had Warren James for opening enclosures? He indulged in no talk of charters or rights: "With a face of the most imperturbable gravity he produced as the voucher of his privilege, an enormous pick axe." [56] With thousands of others he cut down the fences, and was transported for his pains. Criminal or hero? A hundred years later Edna Healey growing up in the forest purlieus amid its Druidical stones and trees, remembered a nickname at school for any obstreperous child, "Chopper James." [57]

Two responses to the struggle were observed, one legal, the other religious. While the forest was enclosed, custom was recognized in law, meeting its fourfold test of incorporeal hereditaments, viz., that it must exist from 'the time when the memory of man runneth not,' that it must be reasonable, continuous, and locally specific. A miner's trade unionist 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."

Douglas Hay distinguished rule of law, as a form of ruling-class ideology, from two other forms, the preceding religious form of the rule of god, and the subsequent economic form in the rule of money. Edward Thompson studied the repressive tyranny in Windsor and Waltham forest in the early 18th century in Whigs and Hunters.[58] The class conflicts led by commoners and poachers stand as a classic of micro-history incisively indicting the cupidity of the Whigs and unearthing ample resistance by the people of the forest. The book remained within the problematic of the time (1975) of law versus crime, and this most committed of historians sided wholly with neither. His quarry included both the privatizing Whigs and wannabe guerrilla revolutionaries, and so he concluded with a lonely paen to the rule of law; a distant hunting horn in the dark forest, sounding 'law a universal value,' 'law an unqualified human good.' But he did not mention Magna Carta.

Further research and cogitation on law and on the moral economy came to an abrupt arrest under the onslaught of privatization, neo-liberalism and 'the second Cold War.' The whole context of discussion about 'the rule of law' underwent near reversal: from de-colonization to re-colonization, from revolutionary aspiration to 'law and order,' from optimism to pessimism. When it resumed two new concepts had been introduced to the old debate about crime and law. These were 'custom' and 'commons.' It remains only to put the two together with Magna Carta.

So: common rights are different from 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 collective. 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 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

Workers 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 indicates values of mutuality and equality?

In addition to the moral economists, Robin Hoods, Levellers, Chopper James, 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 which 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[60]. 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. [61] 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. [62] During the crisis conjuncture of the mid-17th century, also in 1650, "Like all the Iroquois peoples, the Huron believe that dreams transfigure the most trivial things and convert them into symbols when touched by the fingers of desire. They believe that dreams are the language of unfulfilled desires and have a word, ondinnonk, for the secret desires of the soul that wakefulness does not recognize. ... in this society without judges, or policemen, or jails, or property, where the women share command with the men ...."[63]

In wartime, the soldier is promised the earth. The Atlantic Charter promised four freedoms (freedom of speech, freedom of worship, freedom from want, freedom from fear). Churchill would write that the Atlantic charter was not "applicable to coloured races in colonial empires." [64] When the UN Human Rights Commission began its work on its Declaration of Human Rights, W.E.B. DuBois was leading forces to intervene 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. DuBois challenged to their faces 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?" [65] The meaning of "human rights" was a totally different proposition to the millions who were colonial subjects rather than putative free citizens. The National Negro Congress in June 1946 petitioned the UN as drafted by DuBois, 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. 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 of the U.S.A. "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 answer to why appeal to the world, he says, it is "this great search for common ground."

Nancy Peluso in describing the postwar panopoly of state power placed emphasis on 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.

The exclusion of the dreams of the seven hundred and fifty millions DuBois spoke for after World War II reflected the succession of the U.S.A. to Caesar's imperial crown. Under the eye of the omniscient hegemon, as we fall prostrated to the unchecked power of empire, the unipolar world, the absolute asymmetry, the zero-sum, war without surcease. The other side, Porto Allegre, Seattle, Genoa, Durban, Karachi. Mama Ayo led the young Ladies Progressive wing in taking over the Chevron Escravos Terminal. With the struggle now against the U.S.A. empire we may go into the woods to fetch 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 Magna Carta is singular, an English peculiarity, its story is one of oppression, rebellion, and betrayal. It has become a worldwide story with planetary 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'. Sure, it is good to be brave, chivalrous, just, and wise, that is true. But having studied their doings in the forest, in Palestine, in the law court, on the frontier, now Iraq, we have learned to be suspicious.

Magna Carta awaits further interrogation, as begun by subcommandante Marcos. It may yield us both radical and restorative sustenance. It may be a forest commons which we enter to find the wood to repair that broken handle of chapter 39. Going into these woods we enter a world of mutuality and good husbandry. It has more for us, than we thought. The American Bar Association's monument, we remember, found the epitome of Magna Carta in the phrase 'freedom under law.' This however is doublespeak. 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 up: "the King is, and shall be below the law." [66] Yet, even this is incomplete.

If an epitome is needed, let it be, "widow's estovers" as both ample and just. (In the glass enclosed walkway over the Long Island highway separating Hofstra University on 20 March 2003 it was the women students who held posters high, who struck the true note, who maintained the chants, and two days later when some large fraction of a million people marched down Broadway, just below Union Square on a second floor balcony, a mother and her daughter beckoned the people onwards with the sustained might of a blast from the conch shell of liberation.)

Widow's estovers, then. Otherwise, it's the same old Magna Farta and mind forged manacles.

But what was to happen if the bad King John subverted the Charter? At the beginning of this essay I wrote Bush deserves punishment. Do he and the capitalist class deserve capital punishment? Chapter 61 provides that when the king transgresses the provisions of Magna Carta, then "five and twenty barons together with communa tocius terre," will distrain and distress the king's castles, lands, and possessions and in any other way they can, saving only not to harm his person or family. Although it was quoted in the indictment and conviction of Charles Stuart, King, as a tyrant, murderer, and public enemy of the commonwealth, Magna Carta does not call for regicide, or tyrannicide. Otherwise, the "any other way" of chapter 61 = the "by any means necessary" of Malcolm X.

The people specified to do this are the communa tocius terre. While a number of possible translations come to mind, such as 'commune of all the land,' or the 'complete terrestial commons,' or the 'universal planetary commons, 'or the 'whole earth commonage,' it is only fair to the history I have been describing to note that accurate translation awaits the progress in the perambulations of the planetary marches.

footnotes

26.In contrast to Shakespeare who does not even mention Magna Carta in his play King John.

27.Christopher Hill, "The Norman Yoke,"

28.Select Charters (1870), p. 291.

29.The New York Times, 17 January 2003.

30.Daily Gazetteer in 1735 arguing against The Craftsman and quoted in Anne Pallister, Magna Carta: The Heritage of Liberty (Oxford, 1971), p. 53.

31.Christopher Hill, The World Turned Upside Down: Radical Ideas during the English Revolution (1972), pp. 41-44.

32.John Lilburne, Just Defense (1653), p. 14

33.England's Lamentable Slavery (1645).

34.Richard Overton, The Commoners Complaint: Or, Dreadful Warning from Newgate to the Commons of England (1646), reprinted in William Haller (ed.), Tracts on Liberty in the Puritan Revolution, 1638-1647 (Columbia University Press: New York, 1934), iii, 385-6, 393.

35.Thomas Tandy, The Nations Right in Magna Carta discussed with the thing called Parliament (1650) and reprinted by Aporia Press in 1988 edited with an introduction by Andrew Hopton.

36.Perhaps he was acquainted with E. Leigh, Critica Sacra; Observations on all the Radices, or Primitive Hebrew Words of the Old Testament (1641).

37.Tany says that Magna Carta was the people's "koatrified strength." See, Peter Linebaugh and Marcus Rediker, The Many-Headed Hydra (Beacon Press: Boston, 2000).

38.George Sabine, The Works of Gerrard Winstanley (Cornell University Press: Ithaca, 1941), p. 303. W. Wilson Hayes, Winstanley the Digger: A Literary Analysis of Radical Ideas in the English Revolution (Harvard University Press, 1979), pp. 240-1.

39.Four originals remain preserved, one in Salisbury Cathedral, another in Lincoln Cathedral, and the others in the British Library.

40. J.C. Holt, Magna Carta (Cambridge, 1965), p. 18.

41.The historian's craft depends not only on the art of the story but on discovering the truthful story which in turn depends on the science of diplomatics, or analysis of the decrees, treaties, ordinances, and charters of state, a science of the late 17th century. Blackstone was involved in scholarly controversy with Dr. Lyttleton, Dean of Exeter and later bishop of Carlisle, who possessed an ancient roll containing both charters. Blackstone did not accept it as original, and controversy raged in the Antiquarian Society.

42.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.

43.William Sharp McKechnie, Magna Carta: A Commentary on the Great Charter of King John (Glasgow, 1914), p. 415.

44.Holt, p. 275.

45.William Stubbs, The Constitutional History of England, vol. ii (1894), p. 25.

46.Winstanley, Works, Sabine (ed.), p. 519, and International Covenant on Economic, Social and Cultural Rights (1966, 1976), Part I, Article 1, chapter 2.

47.Francesco Gabrieli (ed.), Arab Historians of the Crusades (University of California: Berkeley, 1969), p. 260.

48.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, chapter 7 (forthcoming).

49.Maria Mies, op. cit., p. 10.

50.McKechnie, p. 426.

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

52.Named after the Centre for the Study of Social History at the University of Warwick.

53.Hindley, p. 190.

54.James Scott.

55.J.M. Neeson, Commoners: common right, enclosure and social change in England, 1700-1820 (Cambridge, 1993), p. 158-9.

56.Chris Fisher, Custom, Work and Market Capitalism: The Forest of Dean Colliers, 1788-1888 (Croom Helm: London, 1981).

57.Edna Healey, introduction to Fay Godwin, The Secret Forest of Dean (Redcliffe Press: London, 1986).

58.Douglas Hay, "Property, Authority, and the Criminal Law," in Albion's Fatal Tree: Crime and Society in 18th Century England (Allen Lane: London, 1975), and E.P. Thompson, Whigs and Hunters: The Origin of the Black Act (Allen Lane: London, 1975).

59.E.P. Thompson, Customs in Common (1991).

60.Fiona MacCarthy, William Morris: A Life for Our Time (Knopf: New York, 1993), p.15.

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

62.Holt, p. 61.

63. Anthony F.C. Wallace, "Dreams and the Wishes of the Soul: A Type of Psychoanalytic Theory Among the Seventeenth-Century Iroquois," The American Anthropologist, vol. 60, no. 2 (1958), as quoted by Eduardo Galeano, Memory of Fire, 1. Genesis, translated by Cedric Belfrage (London & New York, 1985), p. 234.

64. Penny Von Eschen, Race against Empire: Black Americans and Anticolonialism, 1937-1957 (Cornell University Press: Ithaca, 1997).

65.David Levering Lewis, W.E.B. DuBois: The Fight for Equality and the American Century, 1919-1963 (Holt: New York, 2000), p. 504.

66.Holt, p. 235, and Pollock and Maitland, I, 152.