1/30/16 11:15 AMThe Magna Carta Betrayed? by Jed S. Rakoff | The New York Review of Books

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The Magna Carta Betrayed?

Everett Collection

Jed S. Rakoff FEBRUARY 11, 2016 ISSUE

King John of England approving the Magna Carta in 1215; illustration by John Leech, 1875

The year 2015 marked the eight hundredth anniversary of one of the most celebrated, andleast read, of the world’s legal texts: the Magna Carta. The great twentieth-century Britishjurist Lord Denning described the Magna Carta as “the greatest constitutional document ofall times—the foundation of the freedom of the individual against the arbitrary authority ofthe despot.” But it was not always held in such high repute. Pope Innocent III, in annullingthe Magna Carta just a couple of months after it was promulgated (though it was laterreinstated), declared that the charter was “not only shameful and demeaning but also illegal

1/30/16 11:15 AMThe Magna Carta Betrayed? by Jed S. Rakoff | The New York Review of Books

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and unjust.” And as a peace treaty between King John and certain rebel barons—which wasits purpose—it was something of a flop, with the rebellion continuing even after John’sdeath in 1216.

The Magna Carta was reputedly drafted by Stephen Langton, the archbishop of Canterbury,and while his authorship has been called into question regarding the overall document, itseems likely he was responsible for the very first operative clause or “chapter.”1 Thatchapter affirms that “the English Church shall be free, and shall have its rightsundiminished, and its liberties unimpaired.” However, while Chapter 1 might be read as astatement of religious freedom, this does not appear to have been the chief concern of thebarons who negotiated the charter: for what follows, in Chapters 2–8, are a series ofprotections for the barons’ widows and heirs against attempts by King John to seize thebarons’ lands and properties upon their deaths. Given what one suspects was the modest lifeexpectancy of the average English baron in those days, it was probably these provisions thatwere uppermost in the barons’ minds.

But what if the baron died while still indebted to those medieval moneylenders, the Jews?Chapters 10 and 11 provide protection for a baron’s wife and children against having to payinterest for a time on debts owed to Jews (though in Chapter 11 also to others). It isremarkable, and disappointing, that so little attention has been paid by subsequentcommentators to these discriminatory and rather cavalierly derogatory chapters.2 Infairness, however, the real purpose of these clauses was, as indicated, to prevent a baron’sproperty from falling into the hands of the king after the baron’s death. This was becauseJews in medieval England were forbidden to own property. Indeed, Jews themselves wereconsidered to be a form of property: “chattels” belonging to the king. Thus, if a baron or hisheirs defaulted on a debt by not paying interest, the property securing the debt became theproperty of the king.

For this reason, John viewed the Jews as useful tools (unlike John’s famous predecessorRichard…

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1/30/16 11:15 AMThe Magna Carta Betrayed? by Jed S. Rakoff | The New York Review of Books

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