Most of us are familiar with the Magna Carta as the first document to limit the authority of kings and declare the rule of law and the rights of the governed. But Peter Linebaugh, an historian at the University of Toledo, offers a more provocative view in an essay, “ The Secret History of the Magna Carta” ( Boston Review , Summer 2003). As originally declared in 1215, the Magna Carta may have validated “freedom under law,” as lawyers like to crow. But several mutations in the Magna Carta, later incorporated into the document we know today, recognize the rights of commoners.
Linebaugh focuses on a provision added between 1215 and 1217 in which the right of a widow to “her reasonable estover of common” was affirmed. An “estover of common” is essentially a right to subsistence from the common — in this case, the right to gather food, firewood, building materials and other valuables from the common forest.
A widow’s estover was probably added, speculates Linebaugh, because France had invaded England in 1216, causing the predictable hardships of war. A widow’s access to the commons could mean the difference between starvation and survival. Yet prior to the adoption of this clause, a local warden or other official might take for themselves some of the food and fuel gathered by commoners, or prohibit it altogether.
In the phrase “widow’s estover,” Linebaugh urges us to see a political economy of the commons that has analogues in our own time. In a subsistence economy, it’s a big deal to have the right of herbage (the right to pasture one’s cattle on another’s land, turbary (the right to cut turf or peat from another’s land), piscary (the right to fish in certain waters), and lops & tops (the right to cut branches and twigs from trees). These might be considered the equivalent of food stamps, Medicare, housing aid and worker’s compensation in their time — a safety net of survival. These were the rights that tended to “the values of mutuality and equality,” suggests Linebaugh.
He argues that the rights of commoners antedate the rule of law, and that the political history of the Magna Carta offers us a glimpse of this fact. “In these histories of the commons, social and temporary specificity undermines the universal pretensions of law,” Linebaugh writes. “They also tend to see that law was 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 commandments’ sake… . The Magna Carta awaits further interrogation, as begun by Subcommandante Marcos. It has more for us than we thought. I may yield us both radical and restorative sustenance.”
A fascinating essay.