By Francis Carr Begbie. If there is one thing our elites enjoy it is giving each other a big pat on the back and the extravagant celebrations planned for the 800th anniversary of the Magna Carta will give them lots of opportunities to do just that.
There may still be eighteen months to go before the actual anniversary itself but the commemoration events are well underway to mark the day in 1215 that King John was finally brought to heel by the barons and where limited government and Western constitutional freedom was born.
In Britain the BBC will broadcast TV documentaries, dramas and radio programmes, and the event is to even have its own opera and specially commissioned symphony.
The occasion will be marked by commemorative stamps and the Royal Mint will issue a special £2 coin. In America high-powered lawyers and constitutional experts will be chewing over the meaning of it all at banquets, dinners, lectures and exhibitions in Boston, Washington and Philadelphia and 800 U.S. lawyers are expected to make the pilgrimage to Runnymede beside the Thames where the document was sealed.
Across the English-speaking judicial world no single document is probably more venerated than the Great Charter. The Founding Fathers embedded it into the 1791 Bill of Rights in the shape of the Fifth Amendment that says no-one “can be deprived of life, liberty or property without due process of law”. And today it is regularly cited in newspaper editorials, political debates and Supreme Court judgments.
But amidst all the self-congratulation about habeas corpus, the right to trial by jury and how it’s wisdom shines down the through the ages and still has much to teach us, one awkward question should be asked, however churlish it might seem.
Why have clauses 10 and 11 been airbrushed from history? These were the ones inserted in the original charter to protect widows and underage heirs specifically from Jewish moneylenders by restricting the recovery of debt out of the deceased debtor’s estate.
But they are nowhere to be found in the official Magna Carta Trust website nor the US National Archive website which instead features the text of the later — and much shorter — 1297 version. The two clauses in the original 1215 Great Charter are:
10. If one who has borrowed from the Jews any sum, great or small, die before that loan be repaid, the debt shall not bear interest while the heir is under age, of whomsoever he may hold; and if the debt fall into our hands, we will not take anything except the principal sum contained in the bond.
11. And if anyone die indebted to the Jews, his wife shall have her dower and pay nothing of that debt; and if any children of the deceased are left under age, necessaries shall be provided for them in keeping with the holding of the deceased; and out of the residue the debt shall be paid, reserving, however, service due to feudal lords; in like manner let it be done touching debts due to others than Jews.
You can, as they say in the British civil service, see the problem.
While unremarkable in their day these short paragraphs are pretty incendiary stuff now and a headache for the organisers of the Magna Carta Trust — Patron: Her Majesty The Queen — which obviously wants to avoid causing offence to the richest and most powerful ethnic group in the legal profession.
Of the forty or so distinguished members of the advisory board of the Magna Carta Trust about a quarter are Jewish and they include:
* US Supreme Court Justice Stephen Breyer;
* John Bercow, Speaker of the British House of Commons;
* David W. Rivkin, Secretary General of the International Bar Association and a member of President Obama’s finance committee;
* Stephen Zack, former president of the American Bar Association and chairman of the ABA’s Magna Carta committee;
* David Rubenstein, private equity billionaire and philanthropist; Rubenstein who founded the Carlyle Group and purchased one of the few remaining Magna Carta charters.
The organisers will also wish to avoid putting noses out of joint with the American Bar Association which is planning to drag 800 of its members away from the expensive shops, hotels and fleshpots of Chelsea and Kensington on a pilgrimage to the rolling meadow by the Thames where the ABA erected the impressive domed monument that has sat on there since 1957.
There is a partial explanation for the omission of the offending clauses. Like all statutes, the Magna Carta underwent a series of revisions and was superseded by other charters drawn up in 1216, 1217 and 1225 and later. Only in the original was there a specific reference to Jews.
The Magna Carta charter bought by David Rubenstein, on display in the U.S. National Archives, for instance, makes no mention of the Jews but it was produced in 1297, seven years after the Jews were expelled from England. Nevertheless it is still a fact that the 800th anniversary in 2015 is a commemoration of the most important Charter, the original toe-curlingly politically incorrect one.
So what relevance has any of this for today? In the narrowest of senses, very little because practically nothing from the Great Charter is still on the statute books in Britain today.
But more broadly it does shine a light into our medieval history and specifically the role played by the Jews in medieval England. In recent years there has been a concerted attempt to depict Jews as a peaceful open community pursuing a wide variety of occupations.
The Jews of medieval England were occupied entirely as moneylenders and enjoyed great privileges and the special protection of the King.
Not only were they exempt from the usury ban on Christians, they were able to move about the country without paying tolls and special weight was attributed to a Jew’s oath, which was valid against that of 12 Christians.
But the protection of the King depended purely on their revenue-raising abilities. It has been said that just as the Jews could soak the wealth from a land the King could squeeze it from them.
The money raising powers of the Jews were an important element on his side in the struggle between Crown, barons, and municipalities which makes up the constitutional history of England. But as could be expected this earned them the hatred of the general population and this often found violent expression. The Jews were seen as very much the King’s creatures and to take against the moneylenders was to take against the King.
What is interesting about clauses 10 and 11 is how prosaic and matter of fact they are. They deal with the technical issue of how an underage heir’s estate can be protected from the depredations of moneylenders until he reaches his majority.
There are no diabolical fantasies of blood libel or any religious content at all. It is just business that is at issue, but underlying the dry prose is anger at Jewish moneylending.
In more recent times some people have chosen to place a generous interpretation that the Jews were not being singled out at all. That is because there is also a phrase “Debts owed to persons other than Jews are to be dealt with similarly” in the original.
In fact much popular anger remained against Jewish extortionate financial practices—so much so that when King Edward returned from the Crusades in 1274 he discovered so much land dispossession that he decided to take action with the Statute of Jewry.
This outlawed usury altogether and tried to entice Jews into the community by granting them a licence to farm. They were also encouraged to make a living as merchants, farmers, craftsmen or soldiers.
Unfortunately when the 15-year trial period had elapsed, it was discovered that the Jews had covertly continued their moneylending and other sharp practices such as coin-clipping.
In 1290, King Edward I issued an edict expelling all Jews from England. The expulsion edict remained in force for the rest of the Middle Ages, the culmination of over 200 years of conflict on the matters of usury.