Magna Carta Club, Part 2
By Bryan Caplan
Clause 11. Further demagogic limits on Jewish money-lenders’ rights to collect on debts.
Clause 12. Limits the tax known as “scutage“; it can only be imposed “by common counsel,” or to ransom the king, knight his eldest son, or marry his eldest daughter.
Clause 13. This Buchanan-esque clause is unfortunately awfully vague:
And the city of London shall have all it ancient liberties and free
customs, as well by land as by water; furthermore, we decree and grant
that all other cities, boroughs, towns, and ports shall have all their
liberties and free customs.
I’d need a serious historian to tell me what this even means de jure, much less de facto.
Clause 14. Spells out the “common counsel” process mentioned in Clause 12.
Clauses 17-22. Sets standards for legal proceedings, especially venue.
Clause 23. No village or individual has to build bridges, “except those who from of old were legally bound to do so.” I wonder if someone with onerous, recently-imposed bridge-building duties lobbied for this. [sarcasm]
Clauses 26-27. More rules about inheritance, including intestacy.
Clauses 28-32. Limits the right of the king and his enforcers to take private property, including food, money, horses, wood, etc. The king can only hold the lands of convicted felons for a year and a day; then he has to hand them over to the local lord.
Clauses 38-40. Protects rights of the accused – and specifically abjures the king’s right to “sell justice.”
Clause 41. This may be the most economically enlightened part of the whole document. It protects merchants’ rights to travel to and from England, except “such merchants
as are of the land at war with us.” Even merchants from hostile lands are guaranteed mild treatment, or at least reciprocity:
[T]hey shall be detained, without injury to their
bodies or goods, until information be received by us, or by our chief
justiciar, how the merchants of our land found in the land at war with us
are treated; and if our men are safe there, the others shall be safe in
Clause 42. This extends merchants’ protections from Clause 41 to “anyone.” Exceptions: “those
imprisoned or outlawed in accordance with the law of the kingdom, and
natives of any country at war with us” and “for a short period in time of war, on grounds of
Clauses 49, 58, 59. As a sign of good will, the king agrees to restore all “hostages and charters delivered to us by Englishmen.” Later clauses apply to all Welsh and specifically named Scottish hostages.
Clause 50. This, the most nakedly anti-Buchanan passage, names names. The following individuals and families are stripped of their bailiwicks: “the relations of
Gerard of Athee (so that in future they shall have no bailiwick in
England); namely, Engelard of Cigogne, Peter, Guy, and Andrew of
Chanceaux, Guy of Cigogne, Geoffrey of Martigny with his brothers, Philip
Mark with his brothers and his nephew Geoffrey, and the whole brood of the
Clause 51. Banishes foreign mercenaries.
Clauses 52, 53, 55-57. Restores the status quo ante bellum for people who lost their castles, lands, etc., or were subjected to unlawful fines.
Clause 54. Grants the accused a remarkable right: “No one shall be arrested or imprisoned upon the appeal of a woman,
for the death of any other than her husband.” Is this the Magna Carta or The Crucible?
Clause 61. Sets up a detailed enforcement mechanism – a committee of 25 barons who can notify the king of breaches of the Magna Carta, and – if he fails to remedy the problem within forty days – legally launch a limited civil war!
[T]hose five and
twenty barons shall, together with the community of the whole realm,
distrain and distress us in all possible ways, namely, by seizing our
castles, lands, possessions, and in any other way they can, until redress
has been obtained as they deem fit, saving harmless our own person, and
the persons of our queen and children; and when redress has been obtained,
they shall resume their old relations towards us.
There are a few clauses where this landmark constitutional document fits Buchanan’s idealized vision. Ex ante, for example, almost everyone probably does benefit if merchants know that they can freely travel in and out of the country. If this clause were credible, it would help solve a big time consistency problem.
Overall, though, the Magna Carta is usually an explicit effort to permanently redistribute power from the king to the nobles who just clobbered him. This is a particularly compelling explanation for the clauses that force the king to punish some of his loyal friends and reverse earlier confiscations and fines. The king’s opponents are trying to limit the king’s access to credible long-term punishments and alliances; even if he seizes your estate, we’ll eventually make him give it back, and even if you’re loyally on his side, we’ll eventually make him throw you to the dogs.
It’s possible, I’ll grant, that the Magna Carta would have passed a utilitarian test. Redistributing power from king to nobles might be better for England and the world. But for Buchanan, that’s no defense. His contractarianism is specifically targeted against the inter-personal utility comparisons that utilitarians take for granted. For Buchanan, a “constitution” like the Magna Carta that singles out winners and losers doesn’t deserve the name. My question: In the real world, what does?