To the Editor:
If judicial gadfly Ron Loeber’s take on the local judicial system is as flawed as his understanding of English history, he is best ignored [“Who’s To Judge?,” Feb. 28].
Every single thing he said about King John and the Magna Carta is wrong. The Great Charter was not procured at swordpoint. John had an army, too, and it had been winning the war with the rebel barons. It did not provide for “the first oath of office.” Every English king, from William the Conqueror on, took an oath to respect established laws and liberties. John “called himself a king,” but so did most of his subjects; he was not a usurper, although he became unpopular.
The baronial grievances had nothing to do with royal absolutism or the “divine right of kings,” a notion which would have been unthinkable at the time. No English monarch was ever absolute, not even Henry VIII, who came a lot closer to it than the hapless King John. John acknowledged constitutional limitations and, for the most part, respected them, although he tried to push his prerogatives to the limit, and this was indeed one of the things the barons sought to check.
The Magna Carta (obviously Loeber has never read it) did not create a new judicial system. Nor had John modified the existing system in any way. In fact, he took great interest in it, and he was unusually learned in the law for an English king. England was not to have anything that might be called a new judicial system until the 19th century.
If you actually read the charter, you would find that it is almost entirely concerned with feudal privileges, which are today almost incomprehensible except to specialists. The charter is, in fact, reactionary. You will also find that almost none of its provisions do anything for the common people. Nobody cared about them. I am a little amused that only one of its provisions is still the law in England—something about what kind of nets fishermen can use on the Thames.
The Magna Carta is only important because 17th-century opponents of Stuart pretensions to absolutism deployed a mythologized version of it. It was this mythical charter that American revolutionaries invoked. So-called constitutionalists, so-called patriots, many libertarians, and some anarchists and leftists swear by the mythical charter (and also a mythical Constitution). Ron Loeber is one of these delusives. Fortunately, the cause of judicial reform does not depend on inaccurate and eccentric views of legal history, and if Loeber is trying to use them for that, he should desist because they can only discredit what is worthwhile in his crusade.
Erin Sullivan replies:
The theory that the Magna Carta was forcibly signed at swordpoint may not be historical fact; however the account that the dissatisfied barons of England threatened to skewer King John is a common one that has been cited in such early American publications as Alexander Hamilton’s Federalist Papers (also known as The Federalist), No. 84.
Although the charter may seem of only minor significance in that its provisions are particular to feudal rights and dues, its importance lies in that it implied that royal subjects’ rights were protected by laws the king was bound to observe. In doing so, the Magna Carta was said to have protected individuals from arbitrary justice and excessive use of royal power (and yes, until the Glorious Revolution in 1688, it was commonly believed that the monarchy was a divine institution and many kings believed they were chosen by God). In essence, it stressed three main points: that the Church was free to make ecclesiastical appointments; that the king could not collect significantly large sums of money from his tenants without consulting the feudal barons; and finally, that no subjects could be punished outside of the constraints of the law of the land.
Although the Magna Carta certainly did not establish a “new judicial system” in England, it did make the following claims, which lay the groundwork for modern court systems:
“No freeman shall be arrested or imprisoned or [dispossessed] or outlawed or exiled or in any other way harmed. Nor will we [the king] proceed against him, or send others to do so, except according to the lawful sentence of his peers and according to the Common Law.
To no one will we sell, to no one will we refuse or delay, right or justice.”
Of course, the original Magna Carta was drawn up in Latin; as a result, interpretations of the document vary.
To the Editor:
I must correct Erin Sullivan’s corrections of my letter involving the historical reality of King John (hiss! hiss!) and the Magna Carta [Letters, March 7]. Echoing Ron Loeber’s fantasy, Ms. Sullivan insists on the historical reality of, at least the statement that the rebel barons “threatened to skewer King John.” I have read (in translation) all the primary sources about King John — and they are all hostile to him — but none of them say this. There was never any face-to-face confrontation between John and the barons, thus no opportunity for skewering. The protracted negotiations which produced the Magna Carta were mediated by Stephen Langton, the Archbishop of Canterbury, who engaged in short-range shuttle diplomacy. Incidentally, Pope Innocent III (John had made England a papal fief) soon invalidated the Great Charter precisely because it was extracted by coercion.
Ms. Sullivan says that this fairy tale about skewering is a common one, but that doesn’t make it true. She claims that Alexander Hamilton in The Federalist No. 84 supports the skewering story. Even if he did, that only shows that, more than 500 years later, somebody believed the story, and I have already mentioned the power of myth in the last paragraph of my letter. But No. 84, which I have now read for maybe the 10th time, does not even do that. All Hamilton says is that “Magna Charta [was] obtained by the barons, sword in hand, from King John.” Nothing about skewering. Undoubtedly Hamilton didn’t mean what he wrote literally, but whether he did or he didn’t proves nothing about what really happened at Runnymeade.
The Magna Carta is important not for what it originally provided for, but for the use made of it much later by English opponents of Stuart absolutism in the 17th century and by American opponents of British absolutism in the 18th century. Since then, though, historians have set forth the real history of the charter, and there is no excuse for reiterating the old mythology for causes which don’t require lies for their merit.
Erin Sullivan replies:
Perhaps Mr. Black did not read the first sentence in my reply to his letter to the editor, in which I acknowledged that the myth about King John was not historical fact but a story that has been told numerous times—even by such respected figures as Alexander Hamilton. I was not trying to pass off the old tale as truth (or, as Black would have it, “reiterating the old mythology for causes which don’t require lies for their merit”). Rather, I was supplying some context for readers as to why Ron Loeber would use that particular account of the signing of the Magna Carta in “Who’s to Judge? [Feb. 28],” against Black’s characterization of Loeber as a “delusive” with an eccentric view of legal history.