0:33 Intro. [Recording date: May 11, 2015.] Russ: This, 2015, is the 800th anniversary of the Magna Carta, which was signed in June of 1215. And I have to confess, until reading your book, I knew an embarrassingly small amount about the Magna Carta, other than to suspect it was important. And I also worry that some of my listeners are in the same boat, which is why you are here. So, let's start with the basics. What was it physically? Who was there when it was issued? What was it about? How long was it? How big is it? How many copies are there? That kind of introduction. Guest: Okay. So, we are talking about a document of about 4000 words--so not a particularly long document by modern standards--written on a piece of sheepskin parchment about the size of an average not-particularly-huge television screen. So, it's about, oh, 2 feet tall by about a foot across. It's not a very large document. Four thousand words. And it's an attempt made between the King of England, a chap called King John, and his barons, with the bishops in there somewhere, to make peace after a period when the barons had revolted against the King, claiming that the King had gone against the liberties and customs of England and that they were going to use this document to reimpose that law on the King. Now, there's an awful lot that's said about Magna Carta, that people think is in Magna Carta, that isn't actually there. And I suspect we are going to come on to that in due course. But just to get one thing straight for a start, that the really important thing about this document, the really important thing about it--it didn't make peace between the King and his people; it didn't establish democracy; it didn't do this, it didn't do that. What it did do is state that the King is under the law. And it's that institution of the rule of law that I think is the thing we should be celebrating this year, in the 800th anniversary year. Russ: Well, that's one of the things that I think resonates throughout the last 800 years. But there are a number of other things that, even though they may not have been important in 1215 came to be important later, and we'll talk about them. One thing--let's put the history in context. Tell us about King John's father. Tell us about King's brother, Richard. And I suspect it's important that there was not an alternative king hanging around who would make an obvious choice for the barons to promote in a real rebellion, which is part of the reason I suspect this was issued, from what I've read. So give us that historical context. Who was King John's father? And why were they so mad at him. Guest: [?] if you've got a dynasty with three members, the first one is the founder of the dynasty. He tends to be pretty good. The second one can be good or bad, as the case may be. And you want to watch out for the third one. And I say that to you, Russ, because it's from where you are standing at the moment: I'm just giving you a small warning. Russ: Much appreciated. Yeah. Guest: Thanks a lot. Enter the second King of England, King John's father [King Henry II]. He came to the throne in 1154. He managed to hoover up [?] really as a result of a series of dynastic accidents and marriages, he hoovered up a huge territory that comprised not just England, the realm of England, but parts of Wales, parts of Scotland; he introduced English rule to Ireland; and above all in Western France, he came to control through marriage and inheritance all of the western seaboard of France, from Normandy in the North all the way down to the Pyrenees, down to Aquitaine in the South. So he was the founder of this great dynasty, and he was generally regarded as a phenomenon in his own times. He is seen as someone a bit like the Emperor Charlemagne, 400 years before; he's seen as one of the great centers of knowledge and learning and power and influence and majesty. Now, he, by the time of his death in 1189, was pretty close to defeating the King of France altogether. The King of France by this stage is being reduced to a small rump of territory around the city of Paris, what we call the Isle de France--the Island of France. There was a real prospect that the Plantagenet kings of England, also ruling in France, that they would seize control of all of these lands that belonged to kings of France. Henry died in the midst of a rebellion led by his eldest son, the future King Richard I, and that was one of the downsides of Henry's family. This was a family that fought amongst itself; it was a dysfunctional family, the Plantagenet dynasty. They were constantly rebelling against one another, brothers against brothers, sons against fathers. Richard I used this great collection of lands that Henry had acquired and all of the money that went with that, to pay for a Crusade in the Holy Land. And again, if we are thinking of more recent times, think of that dynastic founder whose first successor uses all that money to invest in a foreign war that wasn't necessarily seen by everybody as a great success. So during the course of that war, Richard failed to retake Jerusalem. He spent an enormous amount of money on it. And it got an awful lot of bad publicity internationally. Russ: This is Richard, the Lion-hearted, correct? Guest: This is Richard the Lionheart, the eldest surviving son of Henry II. He didn't retake Jerusalem. He did to some extent reestablish the position of the Crusader Kingdoms in the East, after a very shaky period when Saladin had seized most of them. But he didn't fully reestablish his dynasty. He certainly didn't retake Jerusalem; he didn't reestablish the kings in Jerusalem. Russ: And he's spending a great deal of money, I assume, as well. Guest: An enormous amount of money, largely based on taxation from England and from France. On his crusade, he made himself very unpopular with the Duke of Austria, so that as he was returning through Europe, on his way back to England, he was taken prisoner--basically kidnapped--by the Duke of Austria, was held captive; was sold to the Emperor of Germany. And in the longer term was forced to pay a massive ransom of 100,000 marks--that's 66,000 pounds, roughly twice the annual income of the King of England. All of that money to get Richard out of captivity in Germany. So, Richard went down in history as a military wonder who had lived this great campaign, who had achieved chivalrous deeds in the East, but who as a result had very heavily taxed England--had effectively bankrupted this vast treasure that Henry II had built up--in order to pay the foreign adventures. And it's in those circumstances that Richard died in 1199, and that his younger brother, the youngest son of Henry II, King John, came to the throne. Russ: I have to say, as you pause there, that this reminds me a bit of when a Shakespearean play gets set in, say, the 1940s or 1920s. I think you've put some modern clothing on some of these stories. Which I've enjoyed. So, he comes into office in 1199. And, how does it go for him? He doesn't--historically, he's got a bad rep. What went wrong? Guest: There's a view that says when John came to the throne, people were looking forward to it. They were optimistic about what he might do. He was young; he wasn't his father; he wasn't his elder brother. He was intelligent, he was literate, he had some experience of ruling, in Ireland. So there were some, maybe at time, who viewed this as a new beginning. Now, if that was the case, I suspect that in a matter of weeks, let alone months, they realized that they'd got a problem on their hands. Russ: The honeymoon was over. Guest: Very, very quickly. It's very easy in the longer term to say, 'Oh, well, the trouble is that John has a bad reputation, because his reign ended in disaster.' It's a story generally written backwards. We know that the reign ended badly, and therefore, perhaps it wasn't so bad at the beginning. It's just that in hindsight people think it was. Even at the time, even back at the beginning of John's reign, there were clearly people who thought he was an out-and-out rotter. He has already shown himself to be disloyal: he had rebelled against his brother while Richard was in captivity in Germany. He had ruled in an arbitrary way in Ireland. He was surrounded by a group of cronies, his own particular followers, who were not very popular. And he was not trusted, even at the time of his accession. So that he was a man that would stab you in the back as much as look at you. And this really did create problems more or less from the start. Russ: This is despite the fact that Henry and his sons, when they were coronated, would issue a proclamation that was basically an oath to be a really good guy. Correct? Guest: Yes. They would generally issue a charter, a Coronation Charter, saying that their predecessor ruled badly, but they would do well in future. It's standard policy. 'We do apologize for the mistakes of the previous regime, but we're going to rule much better in future.' That was true of Henry. It wasn't true of Richard. Richard issued no Coronation Charter, so far as we know. And John, when he came to the thrown, didn't issue a Coronation Charter. He issued a rather strange Administrative Order, involving the costs of getting letters from the King. It does all these sorts of things you'd expect it to do. It blackens the reputation of Richard; it blackens the previous regime. But it wasn't really a standard Coronation Charter.

10:54 Russ: So, tell us about the role of the courts at this point. And you make a point in your book of saying that the rise of just the basic existence of a legal system was important at this point. What would happen in a court of law in England at this time that was part of the problem for King John's baronial reputation? Guest: Okay. So, law in England is very, very old. It goes way back beyond the Norman Conquest in 1066. It's 400, 500 years old by the time that King John came to the throne. It's mostly custom [?]. It isn't written down. There isn't a book called 'The Laws of England' that you can go to in 1199 that you can go to when John came to the throne. But there is an understanding that law exists. And there is an understanding that the courts operate according to the law. The problem is, though, that the law at this time was also a major source of revenue to the crown. It was a revenue source in part because the people who lost their cases in court--if I sued you for some land and I lost, I then had to pay a fine. I had to pay the court's expenses. All of that money went to the King. It was also very important to the King as a symbol of his authority. So that the King, increasingly, from Henry II's time onwards, drew as much business as was possible into his courts. Because in doing so he deprived other Lords of the jurisdiction that they had previously exercised. So that the great barons of England found that people who had previously come to their courts to litigate, now took their business to the King's Court. So that made the King an economic [?] with the barons for the businesses of these various courts. And it also meant that when the King was short of money, he would use the fines of his court to wrack as much as he could from those whose cases were lost or, in the case of those who were prepared to pay lots of money to the King to win their case, what we would think of as bribery. But in the 12th and 13th century was merely a standard task[?] of the judicial process. Whatever happens, you were bound to pay the King. He began to greatly increase the size of those fines that he was charging for litigation and his court. Russ: And just to give a little background for old-time listeners, or new-time listeners: We make a distinction sometimes on this program between law and legislation, a distinction emphasized by Hayek. A 'law' being what people expect as the custom or norms of the day. Legislation being written down, statutes. So, people make a contrast between common law, the so-called British system, and statute law, which is more like legislation. You suggest in your book though that that distinction is somewhat misleading--in the case of the situation then, at the time. Guest: There was quite a lot of legislation around then, at the time. So, we're not in an entirely customary system [?]. We are in a system whereby both statute law and customary law are operating side by side. So, Henry the Second [Henry II], King John's father, had issued a series of assizes--a series of what we would call Acts, Statutes, Laws--written laws--particularly involved criminal jurisdiction. These existed. Whether they were very well publicized is another story. But, in other words, it's a mixed system. It's also a system--we talk about the Common Law System. We often use that term 'common law' to distinguish the laws of England or the Anglicine[?] tradition from law on the Continent, which operates according to Roman Law Tradition. Which actually goes all the way back to Justinian and beyond. Russ: The Napoleonic Code being an example of written down-- Guest: Precisely. So, it isn't about precedent. It isn't about what happens in the Courts. It isn't about pleadings. It's about what's written down in a code of law. Well, actually those Roman traditions do play a role in England. England isn't an entirely insular system cut off from all of that. It's also a system in which a lot of justices are themselves lawyers--but Church lawyers, canon lawyers. And the canon law tradition, which again derives from statutes issued by the Popes, that, too, is very important in England. So, we shouldn't at this stage be too picky about saying this is Common Law of England which is entirely distinct from Roman law or entirely distinct from canon law. Kings, Barons, whoever it might be, use whatever law they think they can get away with using in court. Russ: Just like today. Guest: They use it for their own advantage, and, as I say, there is also a significant financial advantage to the King here. Russ: But there are other things going on which are also hard for us to imagine in 2015. The King uses a lot of arbitrary power, particularly in death, in terms of the disposition of estates, the inheritance of a castle, a widow's control of castles. Talk about some of the ways that the King was bringing money in from everyday life events. Guest: Okay. England after the Norman Conquest in 1066 is placed in a very strange position. Elsewhere, people own their land outright. They don't really hold it from the King. But because in 1066 the Normans conquered England and seized all the land and gave it all to the King, and the King then distributed--in England, unlike France and unlike other parts of Europe, all land is ultimately held from the King. And it's generally held from the King via a great person, who we've all called a Baron or an Earl--these great persons hold their land directly from the King. Great estates. Which is then distributed among a series of knights. Now, every time a baron dies, his heir owes a sum of money to the King, called a 'Relief'[?]. It's not a very large sum of money. Or at least it doesn't need to be a very large sum of money. But it's significant, as demonstrating that as each generation, the King in theory has a right to step in an redistribute this land. If the baron dies whilst his son or heir is still a minor, is still under the age of 21, then the King acts as guardian, treating this heir as a ward. And can do pretty much what he likes with the estate of that young heir until the heir comes of age. So, he can use it to reward his followers. He can marry off the daughters of a baron to a particular follower and make that follower rich. He can use this large body of land that's held by the barons, really for the patronage of the crown. And there are whole theories of customary taxes that go with this system, what we would call the feudal system. There are a whole series of taxes and customs that go with this that mean the King's Lordship again has a very significant financial aspect to it. So, I don't know whether we could find a modern equivalent for that. We are talking about a combination of inheritance tax, but also really a system in which, if you die with no heir, not only can the King step in and grab your land, but he can actually grant your daughters away, or your sons away, in marriage, to the sons or daughters of his own particular followers. It's a very personalized system. It's a system in which marriages, and marriage alliances, are much, much more significant than they are today. Save perhaps today amongst the very, very super-rich. Amongst those who really want to build up a vast oligarchy of wealth--by their being heir to one great corporation they marry their heir to the heiress to another great corporation. We're in that sort of realm of the corporate oligarchs.

19:08 Russ: There's a certain--when you say, what's the modern equivalent--I think of the city of Chicago in the 1950s, actually. It's not quite that way. But the patronage aspect of it is clearly extremely important to the King. And the competition--what we would call rent-seeking in modern economics--the competition among potential favorites of the King must have been quite intense. And as a reader of Smith's The Theory of Moral Sentiments, when he decries people in the Court who are scurrying around for favor and fawning on the powerful, I always wondered what he had in mind. And this is part of what he had in mind, even though he was writing 500 years later in 1759. He's writing about the competition to get access to the 0-sum game of 'this castle is going to somebody and I hope it's me.' Guest: Yeah, exactly. And there is an enormous profit to be made there from people who are courtly, who can actually get on with this really very difficult ruling dynasty. Who can get access to this ruling dynasty. Because the dynasty also, like lots of dynasties, for the most part hides itself away. It's out hunting. It's out doing the things that Kings do. It's actually very difficult to get at the King. Russ: Well, he's traveling a lot. He doesn't hang out at one place, it seems. Guest: He's got this vast collection of lands in France and in England and the only way, really, of governing it at the time is to travel through it. Regularly to be seen in each place, regularly to be there to do justice. So the King is constantly in the saddle. It's why these kings don't live very long. None of them really live beyond their 50s. They spend their life in the saddle, day by day, traveling from one place to another. Russ: They are really the first, the pioneers of the management-by-walking-around theory. I'm teasing a little bit, but it's a serious concept in management: You get on the floor and you talk to the people. We're talking about a world with very limited communication. When the King was in France and you were in England, he was very far away. Guest: That's right. You've still got it today. The business of the face-to-face meeting is still terribly, terribly important. Today you could run the whole of the world economy on the [?] or through the Internet. And yet people don't do that. They are constantly jet-setting around the world. Because the face-to-face meeting is where things actually get done. Russ: So, get us to 1215. We've got a King, comes into power 1199. He's a bit rapacious. He seems to be very grasping at these opportunities for patronage and taxation and taking lands and money. And so, he doesn't build up a lot of love among the barons. What pushes them to what becomes the key in 1215? There's no real obvious--it seems to me, or is there?--example of what brings us to the confrontation of 1215. Guest: I think there are 3 or 4 things that bring us to 1215. And we've got a 15-year period so let's cover it in the next couple of minutes. Russ: Yeah--5 minutes. Guest: You are missing one very important thing there, Russ, which is the macroeconomics behind all of this. And for an audience who is interested in economics, I think this is significant. It's generally agreed that at this period Europe as a whole is going through a period of quite significant inflation. So, there's quite significant monetary inflation. The prices of hiring a knight, the prices of besieging a castle, are rising exponentially. The King's revenues at this time are to a large extent rented out. They are farmed out at fixed farms. So the Kings of England have a very large revenue from, say, the County of Yorkshire. Big county. And for that, they have an official [?] who pays them the same sum of money--200 pounds. And he paid them that in 1150; and he's still paying them that in 1220. The actual value of that rent has declined massively, as the cost of everything else has risen. So there is a strong argument that says the King, for a start, was in an impossible situation economically. He was forced to turn to these extraordinary fines, these extraordinary exploitations of wardships and heiresses and daughters: He has to do all of that to keep up with inflation. Because his main assets are locked away in a fixed return bond, if you like, in the form of land, rent that isn't actually going up. Are you with me so far? Russ: Carry on. Guest: So, against that background, King John himself behaved appallingly--I think that's the best way we can put it. In the Middle Ages, if you were a king, you were supposed to do two things. You were supposed to be just: you dispense justice. And you held onto your lands, and ideally expanded them. John failed in all those respects. He was seen widely as being unjust. And he failed to hold on to what his family had. And the first real key instance of that came in 1282. The King's nephew, Arthur of Brittany, rebelled against him. This was a dysfunctional family; people had always been rebelling against one another within it. John took Arthur prisoner. John is one real example of military genius. He managed to seize Arthur and all of Arthur's supporters in a lightning raid on the Loire[?]. And at that point, Arthur just disappeared. Now, nobody knows what happened to him. Some people say that John himself murdered him. Some say that John sent an assassin. Some say that Arthur died attempting to escape. But in the past, kings had faced rebellions; they'd locked away their brothers and cousins and so forth. But they hadn't murdered them. John not only murdered his nephew, but murdered a nephew who bore the name 'Arthur,' a legendary name in English history, a boy who was only 15 years old--Arthur was only 15 years old at the time of his taking by John. So, he is a child murderer. He is a tyrant who kills members of his own family. The result of that was a great rebellion. France--a rebellion against the King's injustice that led the King of France himself from Paris to invade Normandy, the whole of Normandy, the whole of Anjou, the whole of the King's territories north of the Loire fell to the King of France in 1204. So, John had not only shown himself to be a tyrant, but also lost his lands. He'd done two of the things that kings are not supposed to do in the Middle Ages. A third thing that kings are not supposed to do--they are not supposed to fall out with the Church. But in 1205, the year after the loss of Normandy, John had a major falling out with the Pope. The Pope did not want John's own candidate to be elected Archbishop of Canterbury. The Pope insisted that John take a particular individual, a man named Stephen Langton, as his archbishop. John refused. The Pope placed the English Church in effect under a [?interdict?] of strike. So the next 6 years there were no masses said; the dead went unburied at consecrated ground; there was no Christian marriage; the sacraments were denied to the Christian faithful. So John really [?] get much worse than that--you would think. Russ: Excuse me for interrupting--it was John's father under whose auspices was murdered. Correct? Guest: Thomas Becket. Yes, absolutely. Russ: So it was a family with troubled--movie fans will remember, it's The Lion in Winter if I remember correctly--which is a lovely film; I don't know if it's historically accurate--but they have a troubled, despite their dysfunctional relationship with each other, they don't do a great job with the Church. Guest: They do. This is a family in which there is an awful lot of shouting, in which there's an awful lot of throwing of plates. You know: the Katharine Hepburn version of this family, yeah, is not very far off in The Lion in Winter. And also, they are a family who rather delight in the idea that they came from the devil. They claim their ultimate ancestor was a she-devil called Melusine. They actually boast about it. And after the murder of Thomas Becket in 1170 in which Henry II did play a part--maybe innocent, maybe not, but certainly he was seen as having said the fateful words that led to Becket's murder, the family was widely regarded as the sons of Satan. They really were not very popular in the eyes of the Church, which is why the Pope could place the Church of England into interdict rather than have John have his own man made Archbishop. Russ: So, I interrupted. That's three of four. Three bad ones. What's left? Guest: We're almost there, Russ. One further thing. How much worse could this get? Well, John used that period of the Papal Interdict to seize the lands of the Church. He became immensely wealthy. Not only was he not taxing all his barons, but he was also taxing the Church directly. He built up a vast war chest, huge treasure. Probably he was the richest king in English history between William the Conqueror in 1066 and Henry VIII in the beginning of the 16th century, who closed down the monasteries and seized the band[?] of the Church and became very wealthy as a result of the Reformation. And John staked all that money on a bid to reconquer his lands in France. And that bid went horribly wrong. John's northern army was defeated on the 27th of July, 1214, just outside the city of Lisle in Northern France at a place called Bouvines. And that battle, the Battle of Bouvines, is as important in the history of France as the Battle of Hastings is in the history of England. It set the kings of France on the road to wealth and fortune thereafter. And in the aftermath of it, John had to slink back to England for the second time, totally defeated at war, having tried to reconquer his lands in France and failed. And that's really where the road to Runnymede begins.

29:17 Russ: And just to make it clear--again, having read your book I have an appreciation of this I otherwise wouldn't have--when we talk about taxes or fees, in modern terms we think about, oh, they raised the sales tax rate from 6.5% to 7%. Or the highest rate of income tax went from 29% to 40-whatever it is. Guest: Well, Russ, you're an American so you can talk in those terms. But if you're in Europe we would be very grateful for a raise of taxes at that level. But yes. Russ: But that's because you don't have--we have estate taxes on top of that, which people often forget. Guest: You do, yes. Russ: It can be about, it's about in the high 40s; and 50% when you include sales tax and the burden of the corporate tax. But anyway, that's not the point. The point I want to emphasize is the arbitrary nature of some of the fees that are going to the King that are not statutory or custom-driven. The King, he's throwing his weight around over this period for financial gain that must have really annoyed everybody who had to deal with him. Guest: Yes. The actual raise of tax is nothing like what the rich pay today. I mean, we--the rich, and I'm not the rich, and I suspect neither are you--pay a certain level of tax. People pay, as you say, up to 50% of their income in tax. No one is doing that back then, in the early 13th century. Russ: But, they don't have iPhones. So they are miserable, even with a lower rate of tax. Guest: Exactly. Precisely. And they are not accustomed to it. That's the most important thing. They are just not used to it. And the other thing, as you quite rightly say, is that it's arbitrary. So today, if they raise taxes in Idaho, you can actually protest against that. You can [?] out and say, 'No, I don't want to pay this.' And you can risk going to jail and everything else. In the 13th century, you don't have the choice. There isn't a higher authority. There isn't a Congress or any sort of body to which you can appeal. There isn't a debate: the King is completely sovereign with his own land. And if he says that taxes are to be charged at this rate, then that rate will be charged. Russ: But it seems to me he also would just make up situations where he just felt like he could get some more money out of folks. It's a human failing. I understand it, but it's not--it doesn't make friends or influence people. Guest: Yep. And when you were talking about walk-around management, this [?] King John, too--that up to that point in 1204 when John had lost all these lands in France, most of his reign, like that of his brother who was off in the Holy Land or like that of his father, who was off in France--these were absentee kings. They weren't there. But from 1204, John is parading around England, on the shop floor, looking for all the opportunities he can find to make more money. He is eyeing up the daughters and wives of his barons; he's seen widely as a lecher; he's the sort of really horrible boss who is there on the shop floor day after day looking for ways to make your life miserable. Russ: Even though it's a different media age, you are suggesting he's a little over-exposed in the public eye. I like that. That's very nice. Russ: So we come--I just have to mention in passing--I'm 60 years old. For those of you who are 68 and over in the United States, the mention of Henry VIII just brings to mind Herman's Hermits, and I'm just going to leave that there and let it sit there for those in the audience who appreciate that.

32:42 Russ: But let's talk about Runnymede, which you just mentioned. This is where this confrontation, or so-called peace treaty takes place. Where is that physically in England? And if you can, tell the-- Guest: It's on the Thames. Russ: Tell the King George VI story, which I really love, the WWII story. I thought that was utterly charming. Okay. So, it's on the Thames. It's between London and Windsor Castle. And it's a wonderful story, as you say. It's the end of the Second World War, just after D-Day landings[?]. The King wanted to go off and actually be with his troops. He wanted to be at the head of his troops, George VI, the King of The King's Speech. And Winston Churchill said, No, he couldn't do that. And the King was so cross that as they went driving back from London late at night to Windsor Castle, he put his fist out the window of the car and pointed at the field of Runnymede on the Thames, and said, 'That is the place'--and I think he said 'that is the something place'--'That is the place where it all began.' Because there, as it were, that kings began to be placed under the rule of law. Halfway between London and Windsor, a little bit closer to Windsor than to London. The key point there to bear in mind is that this was chosen because on the 17th of May, 1215, almost exactly 800 years ago from the time that you and I are talking--coming up on Sunday, the 800th anniversary of that--these barons, fed up with the King, seized the city of London, seized the King's capital, and forced the King into negotiation. So Runnymede is chosen because it's midway between the barons in London and the King, now, in his great fortress of Windsor. Russ: It's a perfect compromise spot. It's neutral territory. Guest: It's neutral territory. It lies on the frontiers between three counties. And it also lies on a river. Rivers have always been seen as liminal places, places where negotiations can take place. Russ: So, here's something--I don't remember from your book and maybe we just don't know. Because CNN [Cable News Network] wasn't there, or the BBC [British Broadcasting Corporation]. So, what happened? Did somebody show up with this piece of parchment? Were there negotiations? How did the content come to be? I know there are disputes over who literally wrote it. I'm sure there are disputes over who inspired or dictated the text. What do we know about where the content may have come from? Guest: The content is in the air for quite a long time before the meeting at Runnymede. So, for a start, the barons, from the moment that the King came back to England in 1214, began saying that the King must issue a charter. He must do what his ancestor, Henry I, had done in 1100 and issue a charter actually with specific terms saying that he would limit the taxes and exactions and exploitation of his barons. So, there's clearly negotiation going on throughout the winter of 1214-1215. For 9 months before ever we get to Runnymede. And I've just been looking at the events of exactly 800 years ago this week, where we begin to get references, this week, to the King saying, 'Well, I will allow the barons to judge one another by their peers in my Court.' Now that idea of judgment by peers did eventually come out in Runnymede, 4, 5 weeks down the line from here. But it was clearly already in the ether at this stage. Another thing that makes things rather complicated here: People knew at the time that these were really important negotiations. They knew that they were participating in something of historic significance. We know that because they kept various of the bits and pieces of parchment that were flying around at this time. So we have early drafts of the Magna Carta that clearly escape from the negotiations. Not only were they taken away, but they were kept very carefully. They were kept almost as if they were holy relics of a very significant set of negotiations. And trying to fit those in to what we know came out of the negotiations is actually what keeps historians in business today. Nobody quite agrees who said what to whom at what particular point. But we do know that there was a very heated negotiation, a very sophisticated negotiation, between some pretty sophisticated individuals before ever we get to Magna Carta. Russ: It's pretty remarkable, because we have a similar debate about the American founding document, the Declaration of Independence--who actually wrote it? We have drafts, we have cross-outs, we have emendations. And it's of course a fascinating historical question. This is a long time before it. This is half a millennium before that. And it's a rather remarkable thing that we have anything at all. That any of it survived. Guest: That's right. Russ: Forget scraps--that we have the actual Magna Carta is--of course, there's more than one issue of it; we'll get to the various editions in a minute. But the fact that we have any of those is really quite extraordinary.

37:45 Russ: So, let's go to the document itself. Again, as an ignorant person, I would have thought it was something like the Declaration of Independence--a set of grand principles. And there's a little of that. But it's actually quite remarkably detailed. It has 63 very specific clauses about how things should proceed from now on. So, talk about the general content and some of the specifics of the document. Guest: Okay. So we are talking about 4000 words, and at the time it was issued it wasn't broken down into these 62 points. That's something we've imposed on it. Russ: And it's in Latin. Guest: So it's a big block of Latin text. The negotiations can't have been done in Latin. They would have been done in French, which was the language of the King, the language of the elite. Even though they rule in England, these are Anglo-French barons. They speak French. So we've got to imagine problems of translation going on here, too. And, as I say, there's a quite heated negotiation that goes on before this, so they have to decide what to keep in and what to get out. There's only a certain amount of material that they can get onto one sheet of parchment. So, some things stay and other things sort of hit the cutting room floor. You are absolutely right though: Unlike the Declaration of Independence, it does not have really significant statements of principle built into it. A lot of it is not at all the hot air that you would expect it to be. It's nitty-gritty stuff about how much precisely should be paid when an heir inherits his lands if he is a knight, or if he is a baron, or if he is an earl. What, precisely, should be the circumstances in which a widow or the daughter of a baron should go into the King's custody? And so on and so forth. A lot of it actually is about the specific nitty-gritty of peace negotiations with the Welsh. With the Scots. Both of whom have joined the barons in 1215. They'd seen a good thing when it was coming, had actually jumped on the bandwagon and were part of this rebellion. Russ: And it's definitely not about the people, by the way. Which is also a romantic thought I might have had. It's about the barons. Guest: There's virtually nothing about the people. There is one reference to the people, if by the people we mean the persons. And it's a very, very specific reference. It says that villeins [free persons/serfs under the feudal system--Econlib Ed.] should not be so heavily taxed in the King's Courts that they lose the means of their subsistence. And it actually says that merchants shouldn't have their merchandise taken away. Villeins shouldn't have--persons shouldn't have their complete livelihood taken away. And free men should not actually lose their means of livelihood, either. Fascinating: That was later used by slave owners in America and Jamaica to say that Magna Carta actually institutes the idea of slavery. It allows the division of society between free men and merchants and peasants, each of whom has specific rights under this constitution. So, it definitely isn't directed to all people. Russ: No. The Devil can quote scripture. Guest: Precisely. The Devil can quote scripture. There is one rather fascinating point in it, though, which is of very great significance there, almost the last clause of the charter. Up to that point it's all been about the rich. It's all about the elite; it's all about the barons and the earls and their rights and privileges. And then almost at the end, it states that all of the liberties that are here granted to the barons, should be extended by the barons to their own subjects--to their knights and freemen. In other words, there is an idea at the very end that this thing is for everybody. And by the much later period, by the 16th century, by which stage there isn't really slavery in England, there isn't serfdom, there aren't peasants who are bonded to their land any more--by that stage it meant that the Charter as a whole could be used as a liberty document. Can I say one other thing that is in the Charter that is awfully significant and is often overlooked? Russ: Yes. Guest: The Charter begins with a grant of liberties not to the people of England, not to the barons, not to the earls, not to the peasants, but to the Church. It says that the Church in England is to be free and to have all its ancient liberties intact. Now, that's a rather odd clause to find at the very beginning of something that we think is all about the constitution. Think of the American Constitution as a deliberate writing out of any sort of established religion from the American Constitution. Magna Carta is the precise opposite of that. The reason the Church is there is partly because the Church and its leaders were crucial in these negotiations. They headed the peace negotiations. And this was their clause, that they made sure came in at the beginning. But it's also because the Charter, to begin with, is granted to God. The Charter begins: 'We have granted to God that the Church in England is to be free.' Russ: The 'we' there is the King. Guest: Is the royal 'we'--this is King John. This is basically, 'me,' I, King John. But he refers to himself in the first person plural. 'We '--we the King. 'We the King grant to God.' Now, the reason that's there at the beginning is that if you give God something, you can't ask for it back. Or you shouldn't ask for it back. Russ: Yes. Guest: You can't give God land to build a church but then on Thursday say, 'Can I have it back so that I can build a car park on it?' So the Church is there for a very strategic significant reason at the beginning. Guest: But that, too, is certainly important, because it meant that in the longer term, the Church had a very strong vested interest in this document. It was the Church that preserved the document. It was the Church that helped write the document. And it was the Church that helped distribute the document around England in the summer of 1215. If the Church hadn't been there, this might have just bitten the dust like lots of other peace settlements and peace negotiations between King and barons before. Because the position of the Church was built into it. And because the Church had archives, the Church had a publicity network that could actually publish this thing. Therefore the Charter survived. Therefore it was published. Therefore it's still named today.

44:02 Russ: And it's, um--I think of it a little bit differently. You can react to this. You say it's kind of the opposite of the U.S. system. It strikes me as somewhat similar. In that, there's a certain separation of church and state. It's not the same kind. But it basically says, the State is not going to mess around with the Church. Now, we have it a little bit differently in the United States, obviously; and the church plays a different role in the United States. Religion plays a different role than it does in England. But there is a certain freedom, freeing, which is true in both situations. Do you agree with that? Guest: Yes, I do, in the sense that the opening clause of Magna Carta basically says the Church has its own laws; the Church has its own liberties, that are set apart from those of State. It's really the triumph of that whole program for which Thomas Becket had died in 1170, or at least what people said he died for. It is the separation of church and state. And to that extent, yes, it is similar to the American Constitution. But whereas your Constitution or at least your Bill of Rights says there will be no established Church-- Russ: It's very different. Guest: It's actually saying there is a Church establishment--there is this Church Establishment. Russ: And it's independent. Yeah. Guest: It's independent, but it's built into the Charter. In a way that the Church in America is almost built out of the Constitution. Russ: Now, anybody can read the Magna Carta online, translated into English. And if you know Latin, I'm sure you could struggle with some of the original. But I want to talk about two parts of it that fascinated me that I knew nothing about. First of all, as a Jew, I was fascinated. The Jews get mentioned twice. The Jews had a very bizarre role in the King's realm at the time. Talk about that. Guest: Okay. So the Jews were really exploited by the kings of England. They have no real rights under English law. They are protected solely by the King. And they were introduced to England probably after the Norman Conquest, really as the King's own private fief, as the King's own sort of army, whose purpose was to make money for the King. And although you have this terrible reputation in the Middle Ages for the exploitation of land, mortgages, money-lending, and so forth by the Jews, that was something into which Jews were force, very much, by kings. Kings wanted the Jews to lend money, because the King made a profit from that money-lending process. So, there's a strange, symbiotic relationship there. Which makes, of course, Jews themselves very unpopular in England. There's a desperate need for credit. But at the same time, by taking credit from Jews, you are likely to fall into the hands of the King in the longer term. If a very wealthy Jewish money-lender dies, the King seizes his bonds; and the King has his own specific Exchequer of the Dues that deals with the collection of the debts owed to late Jewish money lenders. Russ: And vice versa: If you die owing money to the Jews, the King gets the money. Right? Isn't that what the Magna Carta clause tries to reverse? Did I get that wrong? Guest: Well, sort of. Magna Carta is--yeah. Magna Carta is saying two things. In specific reference to the Jews, it says, first of all that Jews are not to charge interest on loans made to Crusaders. So, one way of avoiding paying interest on your loans from the Jews is to take vows as a Crusader. And basically that's part of the law of the Church, and it's an interesting example in which Magna Carta is in accordance with Church law. And then, as you quite rightly say, Magna Carta also says that interest is not to accrue on Jewish loans during the years of minority of an [?]. So, if a baron dies and he leaves a 5-year-old boy, for the next 16 years, until that boy comes at age at 21, that the interest is not to accrue on his debts to the Jews. You can imagine the alternative--the baron dies leaving a 4-year-old boy, and over the course of the 16, 17 years between the baron dying and the boy coming of age, the entire estate would be eaten up in interest payments to Jewish money lenders. Russ: Yeah; the interest rates at the time were in the 20-70% range, if I remember correctly. Guest: And we are talking about unmercifully high interest rates. They are so high that they are generally concealed. Russ: And they are set by the Crown. Right? It's not a market--or is it a market rate? Guest: Nnnn--yeah, I think it's a market rate. The Crown tries later on to intervene to impose, reduce rates of interest. It doesn't really work. And as I say, these interest rates are so high that they are concealed. All the sorts of things that the credit card companies get into trouble for today were true of money lending at this time. They concealed the true nature of the debt, the true nature of the interest payment, by talking about interest payments over a period of time. We're talking about interest that could get as high as 2% a week. Russ: Yeah. Guest: This is a very, very high rate of interest. Russ: And just to finish up-- Guest: I'm sorry, one other thing, Russ-- Russ: Yeah-- Guest: is I think very important, too. This is not just money lending by Jews. There are plenty of Christian money lenders around at the time. But their activities are entirely illegal. Russ: Hhh. Guest: So, although they do lend money-- Russ: Oh, because they are competing with the King's army? Guest: But they are also contravening all of the laws of usury that the Church has made. Russ: Ah. Which is why the Jews are there. Guest: So, a lot of these merchants, Italian merchants, Flemish merchants, who are actually prepared to lend money--a lot of the King's courtiers lend money but all of that has to be concealed. All of that is done behind the scenes. And we occasionally get glimpses of it, but it's probably one other reason why rich courtiers are very unpopular. Because they are actually money lenders. And they are participating in something that we only really see in public when it concerns Jewish money lending. Russ: And at some point, just to finish this historical chapter, the Jews get expelled from England, I think in the late 13th century and don't come back until the late 17th, if I remember correctly. Guest: Yes. Oliver Cromwell.

50:21 Russ: Let's move on to another really fascinating aspect of this, which is--I don't know what you call it--the Committee of 25. Talk about the 25 barons and its significance. A lot of Magna Carta wasn't that revolutionary, as far as the King was concerned. It was really doing what he'd said he was doing--returning to a reasonable state of affairs, that had he existed in some prelapsiarian[?] period in the past when all went well. So, fines and so forth[?] are reduced to levels where regarded as reasonable. What was obnoxious about Magna Carta, what was truly radical about Magna Carta in the eyes of the King, was that it both said that the King could not simply arbitrarily tax his people or arrest his people or do what he wanted to do with his people, without obeying the law. And we're probably come on to this to really resonating clauses. And at the same time, it said that if the King broke the terms of his Charter, which he granted to God--so it was really a very bad thing for him to go against it--if he broke the terms of the Charter more generally, a committee of barons, 25 of them, could, in effect, legally rise up in rebellion against the King and take all measures necessary--seizing his castles, seizing his resources, seizing his treasure--up to actually seizing himself and the King, his family--that was not allowed. So they were immune. But the King could lose all his resources to these 25 barons. And no King, no sovereign authority, is going to accept that. I mean, even America today--the superincourt[?] America is not going to accept that if it acts outside the law, the United Nations can then station troops across America and seize all American resources and seize the central reserve until such time as the super-[?] or the sovereign authority in America places itself back under the authority of the rule of law. Russ: No, but it does remind me a bit of impeachment. It basically says, 'You think you can do whatever you want? Nope. We have a formal process by which you are at risk.' Guest: This is, that's a very, very good analogy. I think the analogy of impeachment is a very good one. And this is effectively impeachment 600 years before it was ever really going to be a practical possibility. If you think of the complications of impeachment or the difficulties of getting anybody impeached today, the same would have applied in the 13th century. It was a completely unrealistic program to put 25 barons over the King. It made it impossible for the King to accept. The program, it made it really very difficult for the barons to accept it. For the barons really didn't want to take on that degree of public responsibility. And it made it utterly impossible for the Pope to accept this treaty. So the King basically ignored Magna Carta within the matter of 10 weeks. And the Pope formally annuls it. Russ: But, he did create again the idea. And we're going to come back again to the idea of the Magna Carta, because it's clearly the most important part. It created the idea of a representative body. The barons would decide who those 25 were. And it creates a legislative body. Really. It imagines a legislative body. Guest: It does indeed: It creates a self-perpetuating oligarchy of 30 wealthy barons. Russ: [?] That's so romantic, perhaps. Guest: But that's how a lot of countries operate later on. Russ: Correct. Guest: So if think of France in the 17th century, the [?] this is what was being proposed in 1215. You are missing out one other clause here, too, which is a little bit better than that. This 25-barons thing--that's a pretty crude operation. But Clause 14 of the 1215 Magna Carta says that the King cannot impose any new taxation without getting consent from the realm. Russ: Yep. Guest: And he gets that by holding a Council. And Clause 14 actually lays down very specific rules about how that Council is to be summoned. It must be summoned to a fixed place: the King just can't have it in his cupboard. It must involve the rights of the people being summoned--barons and knights, representing the community. Now, that clause, too, didn't last very long. It was impractical. But he does already there in 1215 annunciate that principle that there should be no taxation without representation. He doesn't say no taxation without representation. But either in French or in Latin. But the principle is there.

54:52 Russ: So, it's failure. Ten weeks later, as you say, the King has dismissed it. The Church, the Catholic Church, has annulled it. So you'd think it would have subsided into the dustbin of history and just be a footnote. But it's not. What happened afterwards? Take us up to 1300--briskly. And then let's talk about its role in the afterward and intellectual history. Guest: So, very briskly: Two reasons why it didn't die. It didn't die first of all because the Church was hardwired into it. And the Church had a vested interest in preserving it. Russ: The English Church. Guest: Yes. And as far as it goes, actually, as we'll see in a minute, the wider Church. But certainly the English Church in 1215. The Catholic Church in England. There isn't a Reformation as yet; the whole of the European Church obeys the Pope. So, in the summer of 1215 when King John made absolutely no real efforts to publish the Charter--the barons weren't really in a position to publish it--the Church went ahead and published the document. That's why it's preserved in these four cathedral libraries. And it was sent to at least 13 cathedral libraries. The Charter was preserved because of the Church. And then the King died in the middle of this civil war that followed on from the repudiation of the Charter, leaving the 9-year-old son, Henry III. His ministers had no choice but to reissue the Charter as a manifesture[?] of future good government. England was under occupation by French army; the majority of the barons were in rebellion against the King; something pretty drastic had to be done to buy back their support. So the counselors of this boy King Henry III reissued Magna Carta. They took out all of the obnoxious bits about a committee of 25 barons. They took out all the stuff about war with Scotland and Wales. They took out all the stuff about expelling foreigners. They took out all the stuff about the interest on Jewish loans. All of those things went out. And some of the more general principles were left in; and all the clauses about feudal inheritance. They did that in 1216, and because one of them is the Pope's Legate, in effect the Pope now lent his support to this reissued Charter. They then won the war--amazingly, miraculously--they won the war against the barons. And in 1217, having won the war, they reissued the Charter. And then when the King came of age, in 1225, the Charter was reissued again, with the Archbishop of Canterbury, who'd been there at Runnymede, very active in this reissue of 1225. That became the definitive text thereafter. The text itself was only changed in very minor ways after 1225. And then at each successive political crisis throughout the 13th century, whenever the King, Henry III, or his son, Edward I, was seen as acting as a tyrant or acting outside the law, the barons insisted that the Charter be reissued. So it was reissued in 1234, and again in 1253, and again in 1265, and again in 1297, and again in 1300. And on each of those occasions, the Charter was distributed around England; copies were sent to each of the shires, probably to each of the major towns, probably to the cathedrals. So an enormous number of these copies circulated. And as a result, the Charter really became impregnable. It was something that had been reissued so many times in so many different circumstances, it had retained the wording that it has had since 1225. It had now become a totem, a symbol of all of those things that the law of England represented, due process against which the King could not really complain.

58:51 Russ: And yet, it reminds me a bit of a sort of standard inauguration speech--of an American President--a lot of lovely thoughts. Guest: Yep. Russ: As you say, the fact that it has to keep being reissued suggests that it is in a way just a glorified version of the Coronation Charter. It's basically, 'I am a good guy; really it will turn out okay; and if you don't believe me, let me reissue it again.' Something changed somewhere along the line that made the Magna Carta akin--not literally, because of course you don't have a constitution--but akin to a founding document. Guest: Yup. Russ: Something that came down from Mount Sinai that people could say, 'Bob[?], that violates--' And one answer could be 'Who cares?' Who cares if it's not constitutional? Who cares if it's not consistent with the Old Testament? And yet, it resonated in some way. What do you think happened? Guest: There are two clauses of the 1215 Magna Carta that are really stating points of principle. Forget all the stuff about feudal heiresses and all that. Even by 1300, even by the time the Charter was last issued as a single-sheet document, those were all a bit archaic. But there are two clauses, 39) and 40). The first one says, 'We will not go against any free man. We will not arrest them or imprison them or seize their property save by judgment of their peers or the law of the land.' Very general, very vague statement. And clause 40) of the 1215 Magna Carta, says that we will not buy and sell justice. To no one shall we buy, should no one should deny or delay the right for justice. Again, it's Mom and apple pie; it's all very general stuff. But it's tremendously important because it does actually enunciate that principle of due process, of the rule of law. And those two clauses survive; they became clause 29) of the 1225 Magna Carta; and they are repeated on all subsequent reissues. They are really the only two clauses of Magna Carta that were then argued about in the law courts in the 17th century. And we have to jump all that way forward to the 17th century for the real significance of this document to come into play with this once again. Now, you are absolutely right--like a lot of this political rhetoric, a lot of hot air. What these clauses actually say is pretty vague. They say that you are to be tried by the law of the land. Well, that's repeated again and again. Kings keep saying they will try to the law of the land. But they made what the law of the land is. The law of the land can be one thing on a Tuesday. It can be another thing on a Thursday. I don't know where your [?] go to, but I wouldn't really want to trust myself very, very immediately to the law of the land in North Korea, say. Russ: Sure. Guest: The law of the land in North Korea can be a bit different on a Thursday evening from what it was on Thursday afternoon. But then there, they enunciate the principle of due process. And in the 17th century, a group of laws arguing that England had an ancient constitution, that the then-Kings of England, the Stuart Kings of England, were contravening, stood up and said: Look, Magna Carta is an expression of that ancient constitution. It goes all the way back to King Alfred. It goes all the way back even before that, into the realms of myth, back to Arthur, back to Boudica, back to who knows. Back to prehistoric times. And this principle, that the King can't just arbitrarily arrest people, that he must try people by the law of the land, that he must allow them to be tried by their equals, by their peers, that he can't buy or sell justice--we can use this against James I and then against Charles I--the Stuart Kings of England. So people like Edward Coke, who was the Chief Justice of England under James I, who lost his office because he stood up and opposed the King, published his Institutes of the Lawes of England on the basis of Magna Carta showing that Magna Carta could actually be used as a liberty document, against the King, that it guaranteed the liberties of all freeborn Englishmen. Because by this stage, slavery, villeinage, peasantry really has been abolished as a legal status. Magna Carta and those clauses now apply to everybody. Russ: You characterized my characterization as hot air, and it's a fair characterization. But there is something extraordinarily eloquent and beautiful about the King conceding that tyranny should not stand. Even though in the actual application, Tuesdays and Thursdays might be different. The public statement of it makes a difference. And I think the thing that I found inspiring about contemplating a document of 800 years ago is that, a lot of times people put forward ideas, and they say, 'Well, it's impractical, it's not feasible. Politics will kill it.' That was true of the Magna Carta. It was infeasible; it was silly; it lasted 10 weeks. Guest: Yeah. Russ: But it changed the world. Probably. We are maybe overstating it. But I think it did change the world, because it gave something that people could tie their aspirations to that was concrete and real and not just a vague idea. It was something that had been in print. And I think ideas like that end up mattering. Guest: Yeah. I think I would go even further than you, actually. I would say that, I certainly agree that it's changed the history of the world. I certainly agree that it's changed the way that the entire Anglophone legal system regards itself and is regarded. I would go even further. I would say that a large part--it doesn't really matter what Magna Carta itself says--a large part of this is mythology, that the myth itself is terribly important. Russ: Agreed. Guest: The myth, even as early as the 12th century, that the English are freeborn people--it's a load of nonsense; they come from Troy; they are the exiles from ancient Troy defeated by the Greeks: they go off and they found this kingdom of England from which they eventually get a king called Arthur. But they are a freedom-loving people. They live under liberty and freedom. Of course, it's nonsense. It's not actually true. But it's said enough times, over and over and over again that the English people are free, that everyone actually believes that they are. And the same of Magna Carta. It's the iteration, the re-iteration of that document, again and again and again and again. The King is made to promise that he will not buy himself justice. He will not arbitrarily arrest people. It's very difficult for a king in those circumstances to justify arbitrarily arresting people, or buying and selling justice. He can do it, but he has to do it by underhand means. He can't actually do it in public. And I think that's one of the great things. You can call it an organized hypocrisy if you like, but it's one of the great things about the Anglo-American law tradition: It explains why people believe that they will get justice in an American or an English court. And perhaps not in a court in North Korea. Because there is this very, very ancient tradition, very, very longstanding tradition, that the courts are about justice; the courts are about the freedom of the individual. That liberty actually matters. It doesn't mean that[?] no matter what the specific meaning of liberty is in Magna Carta: I suspect it's really different from what we would think of liberty today. I suspect our idea of liberty would be repulsive to those who actually drew up Magna Carta. It would be pretty repulsive to the Framers of the American Constitution. I can't see George Washington walking downtown Washington, D.C. and being anything other than appalled at what he was seeing. But it doesn't really matter what the word meant to the time. We have an idea of what that word actually entitles us to. Russ: We've infused it with its own meaning. And with our own meaning. It's what matters. I'm struck by the idea in the American founding document: "All men are created equal." It was obviously not true, in the way it was implemented. But you keep saying that, eventually you are going to have trouble--and they all did, of course. They had a great deal of unease with the existence of slavery. And it took too long. But eventually it was destroyed. And it's a--as you say-- Guest: Absolutely. Russ: You say it over and over again, it gets harder and harder to be hypocritical about it.