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Butter, bacon and fire: reclaiming the two Great Charters

Magna Carta is only one of the two Great Charters of English Liberty, writes Peter Linebaugh – and we should reclaim them both from the conservatives and neoliberals

June 15, 2015
21 min read

krauze-commonGet your pitchfork ready.
Strike hard and true.
You get them or they get you.
–Amiri Baraka

Butter comes from cows; bacon comes from pigs; fire from wood. These are my simplicities. That they are part of the liberties of England is my argument. Actually it requires little debate, just some reading, remembrancing and common sense. Why we don’t know this is because we don’t understand the commons. But with a bit of work we may quickly repair our injured understanding.

Magna Carta says no to torture and dispossession, and it says yes to due process of law, the jury and habeas corpus. It limits state power. This we know, or ought to. It’s the famous chapter 39, the one that refers to liber homo (‘free man’). But the charters of 1215 also commit us to subsistence for all, and that in peculiar ways – via the neighbourly commons, not state communism.

To begin with we must consider two charters, not one: Magna Carta and the Charter of the Forest. Indeed, Edward Coke, the man who more than anyone else gave to Magna Carta its modern meanings, considered them equally ‘weighty of matter’ and called them Magnae Chartae Libertatum Angliae, the Great Charters of English Liberty. Charles I was frightened of his research and while Coke lay dying the king had his house ransacked to destroy his papers concerning the charters. Yet they were saved, parliament published them as Institutes of the Laws of England (1642), and Charles I was decapitated for violating them, ‘the fundamental constitutions of this kingdom’, to borrow a phrase from the indictment.

Cromwell or Charles, royalty or republic? To Thomas Hobbes they were much the same. He deemed the state a gigantic, aquatic monster, the Leviathan, devouring lands overseas and people at home. Driving it were ‘the merchants of Babylon’ (John Milton) who would ‘erase every line and clause of both our great charters’.

In the next century, William Blackstone (whose Commentaries on the Laws of England deeply influenced the framers of the American constitution) wrote the first scholarly treatment of the documents and semantics of the charters. His The Great Charter and the Charter of the Forest (1759) again paired them as Coke had done. Ever since they have been split in twain by a dangerous historical caesarean operation, still perpetuated by contemporary servants to Caesar, aborting the little charter. Lord Sumption’s address to the Friends of the British Library, ‘Magna Carta Then and Now’, is a case in point. Likewise with David Carpenter’s Magna Carta (Penguin, 2015).

Edward Coke wrote that the phrase from chapter 39 of Magna Carta, homo liber, applied even to villeins. It is a postulate rejected by conservatives and strict medievalists. Mark Twain called it ‘a sarcasm of law and phrase’. Ever since, the power of the charters has been demeaned by pettifoggers who say that ‘free man’ refers only to the privileged possessioners, not to everybody. This was the attempt to inscribe private property, and later capitalism, in the charters’ DNA.

‘Generally a man may common in the forest,’ Coke wrote, reminding us that ‘common’ may be a verb – which, if not excusing Robin Hood’s programme, certainly did not help the Sheriff plant the hedges, dig the ditches, or erect the fences of enclosure.

The Charter of the Forest has 16 chapters. The first says the king must disafforest the woods afforested by his father and grandfather except in his own demesne ‘saving the Common of Herbage and of other things in the same Forest to them who before were accustomed to have the same’.

Three things need to be said in this context. First, the word ‘forest’ came to England with the Norman Conquest and it is a legal rather than an ecological term, referring to royal law rather than to trees. Second, ‘common of herbage’ refers to the grazing of cattle. Did this belong to ‘all Freemen’, as the preface asserts, or did it belong to those accustomed to it? The answer belongs not to law but to history, and it differs from parish to parish, woods to woods, part of the particularisation of England and its ‘greenhue’. That is the third comment. To be ‘accustomed’ confers a right, in this case the common of herbage, or ‘the cow’s grass’ (to use the Irish phrase), which explains the ‘butter’ of my title. Like cheese, milk, cream, steak and beef, it is a gift of the cow.

The gift of the pig

The ninth chapter of the Charter of the Forest brings us to bacon, the gift of the pig. It says: ‘Every Free-Man may Agist his own Wood without Our Forest, at his Pleasure, and shall take his pannage.’ ‘Agist’ simply means admitting cattle into the wood, and in this case to agist the forest is to admit swine. ‘Pannage’ means ‘mast’, or the acorns and beech-nut of the woods.

Thomas Fuller wrote in 1622 of the pigs in the New Forest that ‘going out lean, return home fat, without either care or cost to their owners. Nothing but fullness stinteth their feeding on the mast . . .’ William Ellis, writing in 1750 of beech mast, said it ‘is the Poor man’s great Friend, because it tags him a Pig or two, and, with some Help, a larger Hog, for pickled Port, or Bacon’ for a full year. William Cobbett, writing during the 1820s of the Forest of Dean, where every cottage had a pig or two, found that: ‘These graze in the forest, and in the fall, eat acorns and beech nuts and the seed of the ash; for these last, as well as the others, are very full of oil, and a pig that is put to his shifts will pick the seed very nicely from the husks.’

Hugh Latimer, the Tudor bishop of Worcester, preached a ‘Sermon on the Plowers’ in 1548. Referring to the commoners, he said: ‘They must have swine for their food to make their . . . bacon of. Their bacon is their venison, for they shall now have hangum tuum if they get any other venison; so that bacon is their necessary meat to feed on, which they may not lack.’ It thus was not a sermon advocating poaching, yet the politics of animal flesh, deer or pig, and the social hierarchy clearly depended on the commons. As Latimer explained, ‘And pasture they cannot have if the land be taken in and enclosed from them.’

Latimer’s joke about capital punishment (tens of thousands were hanged in Tudor England) reminds us that the tenth chapter of the Charter of the Forest stated ‘No Man from henceforth shall lose either Life, or Member, for Killing of Our Deer,’ but a fine, or imprisonment, or for repeated offence, outlawry instead. This was a major step in the long history of the abolition of English hanging. The only contemporary commentator of the Charters, Robert of Béthune, put this provision and that opposing the disparagement of women as the most important in the Charters.

Bob Malcolmson, from whose book on The English Pig: A History I have drawn, was a student of E P Thompson, who took his seminar in Warwick down to the cottage of Mabel Ashby in the Cotswolds. She wrote a remarkable memoire of her father, Joseph Ashby of Tysoe, a Warwickshire village. This is one of those books, like Ronald Blythe’s Akenfield or Flora Thompson’s Lark Rise to Candleford, that brings to rural life sweet powers of observation, an egalitarian and humane attitude, and a sensibility fully attuned to women’s round of labour.

Joseph was the secretary to the Pig Club. He told her that in pig keeping, ‘there could be real citizenship, if only the framework of life was right’. What he meant, as she told Malcolmson with Thompson leaning forward to hear, and as Thompson wanted us to understand, was that even rural misery might be alleviated by the collective self-activity of the people themselves, who otherwise looked forward to an early grave. The democracy-and-economics copulative generated pork and self-respect.

Such is the foundation for a right ‘framework of life.’

After the aunt of Thomas Spence lost a cow from the commons owing to enclosure he became a life-long advocate for ‘all things in common’. He coined his own money, a halfpenny piece with a pig treading on crown and mitre surpassed by a liberty cap. He called his radical newspaper Pig’s Meat, answering the conservative Edmund Burke, who referred to the people as ‘the swinish multitude’. Spence and Gracchus Babeuf of the 1790s were Europe’s first communists. They transformed the commons into something like true communism. Spence, Babeuf, and Marx, it is important to say, had direct personal experience with violent expropriation from the commons.

‘Reasonable estovers’

So, that’s the ‘bacon’ of my title. The ‘fire’ of the title takes us away from the Charter of the Forest and to Magna Carta as emended in 1217. Its chapter seven says ‘and she shall have in the meantime her reasonable estovers in the common’.

What are estovers? Coke explains that the word ‘estover’ comes from the French and it refers to ‘things that concern the nourishment, or maintenance of man wherein is contained meat, drink, garments, and habitation.’ He adds that, ‘When estovers are restrained to woods, it signifieth housebote, hedgebote, and ploughbote,’ or as we might say estovers meant wood taken for home repairs, for fencing, or for tools. He takes it for sustenance. Stubbs believed estovers referred to firewood. American commentators expounded it simply: ‘Estovers of common were a share of the produce.’ Wood was the principal energy source, equivalent to petroleum today. The women of the village collected wood-falls, lops and tops, or brush wood, which often as not rightfully became the estovers for cooking and heating. Nowadays, all over the world it has been women who have protected the commons.

Suppose that we gave to the Charter of the Forest that same generosity of interpretation that in the past was given to the Magna Carta. Instead of finding incomprehensible a medieval lexicon of weird or forgotten terms, or an adorable setting for a skit of Robin Hood and men-in-tights, we treated the animals of the woodlands as our fellow creatures and the canopy of plants and trees as the lungs of life. Nor would we cast the era into a locked and shuttered historical chest called ‘feudalism’, a Pandora’s box from which not even Hope could escape.

To those common rights or customs we would add others mentioned in the Charter of the Forest and the government of them through the swanimote courts, court leets, and wodemotes. Assarts were bits of land cleared from the forest for arable uses. Purprestures was forest land taken for buildings. Chiminage was the right to use roads without paying tolls. There is a lexicon unfamiliar to us because it was based on use-values rather than the abstractions of exchange value where ‘money answers all things’.

An economy that was not based exclusively on money or commodity production could be built up from such a collection of common customs. It was an economy without the severe separation between production and reproduction. Such commodity production and market transactions as existed were closely regulated. ‘A merchant has merchandise, a rustic his wainage’ – the seed, the ploughs, the plough team, the grain in the stalk. Economically speaking, we might call them the means of production. Remember that Clause Four of the old Labour Party called for ‘the common ownership of the means of production’, not state ownership.

The English colonisation of the north American mainland occurred in the 17th century alongside the struggle against Stuart despotism. Cavalier and Roundhead battled each other at the same time that Anglo and African entered the history of the ‘new world’ as settler and slave. Many of the colonial charters quoted some of Magna Carta, but said nothing about the commons or the Charter of the Forest. Two consequences flowed from this absence.

First, subsequent American legal history was founded partly on Magna Carta, which became, second only to the bible, a sacred cow that the fundamentalist politician tries to milk. The American Declaration of Independence (‘All men are created equal’) owes its existence to a suggestion by Thomas Paine to the American rebels that ‘a Magna Carta’ be composed’. Then in the American Civil War the discussion of Magna Carta revived and its powerful enabling expression, ‘due process of law’, was enacted in the 14th amendment.

Second, American development could proceed without a notion of the commons despite the fact that its meanings had been deeply and permanently replenished as knowledge of indigenous practices was transmitted by European sailors (Thomas More’s Utopia, 1516). The axe and chainsaw triumphed and the trees came down, the villages were burnt and the hunting grounds destroyed. The practices and concepts of the commons arising in the colonised world became part of European discussion. As the Irish say, ‘English history happens elsewhere.’

‘The fires of revolution are incorporated into the Magna Carta of our liberties, and no human power can avert the awful eruption which will eventually burst upon us as Mount Vesuvius burst forth upon Herculaneum and Pompeii.’ This was written by Timothy Thomas Fortune (1856-1928), printer, colleague of Ida B Wells, coiner of the term ‘Afro-American’ and sometime editor of the largest circulation black newspaper for its time in the world, the United Negro Improvement Association’s Negro World.

Imperialism, conquest, racism, patriarchy, capitalism, and privatisation are no longer sustainable. This becomes clearer with every flood, every earthquake, every woman raped, every polluted stream, every diseased fish, every disappeared species, every fire in the factory, every drone in the sky, every ounce of lead in the soil, in every dead man shot in the back.

We must champion the commons in the Charters. Otherwise they will become the licence of crusading bigotry, or the excuse for complacent adherence to the status quo, a museum relic, or racist slur. Ours is a time of ecological devastation. Our era is about to be deemed the ‘anthropocene’, so now is the time to come to the aid of our planet. Its lungs are sick, and a stethoscope is not needed to hear the wheezing.

Common meaning

So if one problem has been this caesura to the charters, another has been the meaning of one of the most powerful words in the English vocabulary of politics, economics, and society. I mean the commons. Here the simplicities with which I began become complicated. The fact that the same word may express different meanings (the Oxford English Dictionary lists 33) certainly may lead to confusion. Equally, however, it may suggest relationships that would otherwise be missed. This is the case with commons.

When E P Thompson went off to war in 1941 he put in his kit a single book, A Handbook of Freedom, edited by Jack Lindsay and Edgell Rickword. The book contains bags of quotations expressing English democracy through 12 centuries. ‘It will be noticed,’ wrote Rickword in his introduction, ‘how the word “common” and its derivatives, now so strangely altered in drawing-room usage, appear and re-appear like a theme throughout the centuries. It was for the once-vast common lands that the peasants took up arms; it was as the “true commons” that they spoke of themselves when they assembled, and it was the aspiration of men not corrupted by petty proprietorship “that all things should be in common”.’

What is remarkable is that commons refers both to people and to land, the animate and the inanimate; there is not a separation between ‘common pool resources’ (to use economic jargon) and popular community.

Going forward to Raymond Williams’ Keywords (1976) we find a salutary warning: ‘Common has an extraordinary range of meaning in English, and several of its particular meanings are inseparable from a still active social history.’ He then develops a semantic contradiction between the commons as ‘the generality of mankind’ and as a noun of social division, contrasting the commons with the nobility.

The ‘active social history’ has advanced over the past 40 years. Williams does not consider the manifold agrarian, sylvan, maritime, urban, atmospheric, and electro-magnetic meanings of commons. That social history has been activated by indigenous peoples, by healthcare workers, by computer hackers, by squatters, by urban gardeners, by musicians and artists, by the takers-over of factories, and by the teachers and child-minders of neighborhood, family, and crêche.

Rickword, Thompson and Williams were all active members of the Communist Party of Great Britain for a time. While they resigned from the Communist Party with its Stalinist rigidities, they did not apostasise from the principle that brought them to it in the first place: the equality of just conditions. As scholars they dug deeply into the tangled roots of communism and the commons: Thompson’s moral economy and archival localism, Williams’ cultural structures of feeling and deep reading.

We would then find an ‘alternative’. We could see that our own era is temporary, and that there is nothing inevitable about it. Central to this interpretation must be the commons with its many layers of meaning. Though tempted to reduce it to one of the stages of history – ‘primitive communism’ – this only establishes distance precisely when we need intimate, plausible proximity to an imagined future. Those stages in any case were based on modes of production and what any consideration of the commons demands from us is emphasis on reproduction. This took place around the fire, the kitchen, the realm of domesticity extending to the creatures of the yard and the greens of the garden. Here the historical subject is no longer homo but femina.

The law locks up the man or woman
Who steals the goose from off the common
But lets the greater villain loose
Who steals the common from the goose.

The temporalities of the commons are profoundly different from the technological criteria of histories of production. The commons requires a hermeneutics – a theory and methodology of text interpretation – as well as a politics. I use a theological term because our mental/conceptual resources must also expand beyond empirical determinisms, romantic rhapsodies, antiquarian obsessions or patriarchal triumphs.

The great charters of English liberty began as an armistice (1215), quickly became a treaty (1217), developed a legislative appearance (1225), became the first statutes of law, and mutated into something constitutional, clipping the wings of Stuart despotism, partaking of revolution (1649) and enabling the Enlightenment project of American independence (1776).

A covenant between classes

It was a deal, or a covenant we could say, between classes – that is, between a ruling class of barons and aristocrats, or Paine’s ‘Norman banditti’, the merchants of the towns and the smaller landholders already with a market interest. In short, the bourgeoisie. The great charters of English liberty were born in conflict, in war, and they developed and changed in conflict and war. That is the human history. Will it be otherwise with the commons?

The US constitution was not a document of the class of workers. On the contrary, it was impossible without involuntary servitude. Frederick Douglass, the ex-slave and great abolitionist, said to the Cincinnati Ladies Anti-Slavery Sewing Circle in 1854, ‘Let the engine of the Magna Carta beat against the Jericho walls of slavery, and no seven days blowing of ram’s horn would be necessary.’ The US constitution has been amended and no one could see in the 14th amendment the word ‘slave’. And yet the entire force of this provision is the result of four years of civil war to abolish slavery. The generative power of the 14th amendment comes from phrases first appearing in Magna Carta’s chapter 39. The state was forced to become an emancipator.

American robber barons, by means of judicial fudge and legalistic twaddle, turned it into a constitution for their own interests – namely, profit and private property – just as English imperialists turned Magna Carta into a load of humbug designed to cover up conquest and racism. This ‘gilded age’ depended on ‘Jim Crow’, or re-enslavement. The African-American T Thomas Fortune wrote that ‘land is common property, the property of the whole people’. Even at the moment of high imperialism and glorification of the Anglo-Saxon race in the early 20th century, people of colour leading national liberations – Gandhi, Mandela, Sun Yat-Sen – appealed to it against empire and racism.

The second world war was another time when a class-wide covenant began to emerge from the cauldron of class conflict. As Dona Torr, the brilliant English communist, said in 1940: ‘Millions who stood outside history have become makers of history.’ C L R James, Virginia Woolf, Henry Miller, Aneurin Bevan, Christopher Hill and Mary Inman were a few of the thinkers who were transformed that year. In America ‘The Ballad of Magna Carta’, with music by Kurt Weill, was played on national radio.

The commons returned but not by name and not completely. It came with the Four Freedoms – freedom of speech, freedom of religion, freedom from want and freedom from fear – that Franklin Roosevelt obliged Churchill to accept as a condition for wholehearted war aid. These he related directly to Magna Carta in speeches in early 1941. In war or disaster, as Rebecca Solnit has shown, the ideal of common mutuality may naturally but unexpectedly be materialised. This was the case in 1941 when the people of London took over the Underground for their common security against the Luftwaffe. Only then did the government step in. Leviathan attempted to take over the commons, no longer as self-activity in production and reproduction, but as the welfare state.

Our own epoch is one of privatisation and the ideology of neoliberalism. Opposition can be conducted in the name of the commons – that is, of subsistence for all. Opposition must be disestablishmentarian, not part of the establishment of church, monarch and money – neither Thomas Hobbes’ Leviathan nor Milton’s ‘merchants of Babylon’. Can a document sorting out ruling-class differences 800 years ago be used in the necessary project of abolishing the ruling class altogether? The master’s tools cannot dismantle the master’s house, says Audre Lorde, and perhaps she is right. Certainly we must develop tools of our own as the Zapatistas have done with their juntas de buen gobierno.

Using the great charters today

Meanwhile, how would we use this inheritance? We must restore the unity of the two charters so that grassroots subsistence and limitations on state power become our dual project. We need to address the commons as a solution to our own needs, for water, air, land, fire and (as we must add) mind. We want equalisation, or the abolition of the economic class system of exploitation. For compelling needs we need compelling law or jus cogens. We need a different conception of property that is neither state nor individual, and a different conception of ‘man’.

Magna Carta gave us homo liber, or ‘free man’; Carl Linnaeus gave us homo sapiens, or ‘wise man’; E P Thompson spoke of homo economicus, or ‘economic man.’ Our era of privatisation has produced another ideal historical species of man, one opposed to the commons, and deriving etymologically from the Greek work for private: I mean homo idioticus. Homo idioticus is idiotically polluting the air and waters, engrossing the land and forests, and creating misery in his ceaseless, selfish accumulation and wars of drones.

Be gone with homo idioticus! Be gone with homo altogether! Why should ‘man’ represent all? Suppose that the ungendered all was called femina instead of homo. Of course we do not propose femina idioticus. We want to common. So in keeping with binomial nomenclature let us try femina communis and build the world accordingly.

In conclusion I want to bring together two June events. One is the assassination of Wat Tyler at Smithfield on 15 June in 1381. Tyler had been telling Richard II about an earlier meeting when the people demanded that he return the commons or common lands (marsh, pasture, meadow) from the greedy landlords who had taken and enclosed them. That was a freedom day.

The other is the news of Abraham Lincoln’s Emancipation Proclamation arriving late into Texas on 19 June. To this day it is celebrated among African-American communities as ‘Juneteenth’. That too is a freedom day. Surely this is a holy day if there ever was one and must needs become worldwide!

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