A Radical History Of Britain

by Edward Vallance

  This clause has been revered from the thirteenth century to the present day. Yet it is also the case that governments from the eighteenth to the twenty-first century have met little legal resistance when they have circumvented its terms. Clause 29 has been suspended or revoked by Parliament on a number of occasions, most notably through the suspensions of Habeas Corpus in the eighteenth and nineteenth centuries (largely implemented, it should be noted, to suppress public agitation for democratic rights) and via the Defence of the Realm Acts passed during the two world wars. Unlike in the United States, judges in the United Kingdom cannot rule that such legislation is invalid when it appears to be in breach of the constitution, and the British law lords have consistently sided with successive home secretaries rather than the Charter where such clashes have occurred, as in the cases of Rex vs Halliday (1917) and Liversidge vs Anderson (1942). In the latter case, the one dissenting judge, Lord Atkins, entered a memorable and public protest at the majority decision:

  I view with apprehension the attitude of judges who on a mere question of construction [i.e. of an Act of Parliament] when face to face with claims involving the liberty of the subject show themselves more executive-minded than the executive. In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority [Sir Winston Churchill] we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law. In this case I have listened to arguments which might have been addressed acceptably to the Court of King’s Bench in the time of Charles I. I protest, even if I do it alone, against a strained construction put on words with the effect of giving an uncontrolled power of imprisonment to the Minister.40

  Most recently, chapter 29 has been invoked in the case of the displacement of the Chagos Islanders, ejected from their homes in the Indian Ocean to make way for an American military base on Diego Garcia in the 1960s. A note made at the time by Denis Greenhill, then a senior Foreign Office official and later Baron Greenhill of Harrow, revealed the utter contempt with which the British government viewed the islanders: ‘Unfortunately, along with the Birds go some few Tarzans or Men Fridays whose origins are obscure, and who are being hopefully wished on to Mauritius etc. When this has been done, I agree we must be very tough.’41 By the early 1970s, most of the Chargossians had been moved to the slums of Port Louis, Mauritius.42 The whole US/UK enterprise in the Chagos Islands was hushed up; fear of bad publicity led the UK government to give some compensation to the islanders in 1983 after private suits were threatened. Cases nonetheless continued to be lodged against the British government, but these were all essentially based on private law claims relating to trespass and false imprisonment, which were difficult to prove (it was hard to see how expulsion could be interpreted as imprisonment).

  The issue was revived, however, by the revelation that, though they now lacked any homeland, the Chagossians retained dual British/Mauritian citizenship. The islanders’ English lawyer, Richard Gifford, considered that if they had a right to live on the islands, that right must originate in the same right that UK citizens had to abide in the United Kingdom. That right, confirmed in the 1971 Immigration Act, originates from Magna Carta chapter 29, especially the provision that ‘no freeman shall be … outlawed or exiled … but by lawful judgement of his peers or by the law of the land’. If Magna Carta could be proven to apply to the British Indian Ocean Territory (as the islands were collectively known), then the colony’s 1971 Immigration Ordinance, which banned any inhabitants on the island other than military personnel, might be invalidated.

  The case went to the High Court in July 2000 before Lord Justice Laws. The verdict struck down the BIOT’s 1971 Immigration Ordinance but not, as some commentators asserted, on the grounds of the provisions of Magna Carta. The judge agreed that Charter liberties extended to the colonies, but these liberties confirmed only a procedure, not a right. As the 1971 Immigration Ordinance effectively amounted to ‘the law of the land’ in the Chagos Islands, the exile of the indigenous population was lawful under Magna Carta, which only guarantees due process. The victory was a hollow one and, as Gifford reflected, one in which human rights were barely mentioned. Return to Diego Garcia was banned in any case, the Blair government insisted, by treaty obligations with Washington. Despite a further legal victory in 2007, repeated appeals from the government have ensured that the Chagossians still cannot return their homeland.43

  The problem, as the case of the Chagos Islanders reveals, is not, as writers on the right such as Peter Oborne have suggested, that Magna Carta liberties are under ‘sustained and ruthless attack’ by the British government.44 The problem is that Magna Carta, while it may be seen as a symbol of freedom and democracy the world over, in a British legal context guarantees very little. In fact, this ‘ancient constitution’, so revered by conservatives, essentially hobbles those few modern concessions to civil rights, such as the Human Rights Act of 1998, that have appeared on the statute books.

  Diego Garcia is the base for many of the United States’ bombing sorties over Iraq and Afghanistan. Besides the arbitrary and continued displacement of British subjects, the threat of imprisonment without charge has been resurrected by Britain’s current involvement in the ‘War on Terror’. British subjects have been imprisoned, in conditions at which even King John might have baulked, without charge or clear prospect of a civil trial in the American camps Delta and X-Ray in Guantanamo Bay. This is despite the additional legal protection given to British subjects by the 1998 Human Rights Act. However, as the law lord Lord Hoffmann argued in ex parte Simms (1999), ‘Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal.’ The caveats that Hoffmann introduced into this sweeping description of parliamentary legislative power are less than reassuring, given what has occurred in the cases of the Defence of the Realm Acts, the Chagos Islanders and the prisoners in Guantanamo Bay: ‘The principle of legality means that Parliament must squarely confront what it is doing and accept the political cost.’45 Yet the British government has continued with its foreign policy in the face of massive public demonstrations against the Iraq War and opinion polls indicating clear majorities opposed to military action. To use Hoffmann’s moral arithmetic, it has weighed up the political costs and decided that they are not so prohibitive as to necessitate an end to the government’s human rights abuses.

  The power of the myth of Magna Carta, and the weakness of the letter of it, reminds us that legal enactments alone are only part of the process by which human rights are secured. Nor are the freedoms we hold preserved in aspic; nor are we on an inevitable upward trajectory of ever-broadening liberty. The struggle to gain and preserve rights and freedoms is not part of the past, to be safely sampled on a ‘heritage trail’ of British liberty, but a vital part of our political present and future. Thus, the political agency of the British people has been crucial to the defence and extension of our rights and freedoms. As the late Marxist historian of the Middle Ages, Rodney Hilton, reflected: ‘The noticeable tendency of the English to be self-congratulatory about having given the idea of liberty to the world with Magna Carta [should] be modified in the light not merely of the exclusion from its enjoyment of the mass of the population, but of the long-term consequences of that exclusion.’46

  As we shall see in the next chapter, it was only through the collective actions of large numbers of the English people that the freedoms claimed in the Great Charter actually came to be enjoyed.

  PART TWO

  WHEN ADAM DELVED AND EVE SPAN

  CADE

  It is to you, good people, tha
t I speak,

  Over whom, in time to come, I hope to reign;

  For I am rightful heir unto the crown.

  SIR HUMPHREY

  And thou thyself a shearman, art thou not?

  CADE

  And Adam was a gardener.

  William Shakespeare, Henry VI, part 2, Act IV, Scene 1

  2

  THE PEASANTS’ REVOLT

  The late Marc Bloch, one of the greatest historians of medieval Europe, suggested that the nature of the seigneurial regime made peasant revolts as natural and endemic as are ‘strikes to large-scale capitalism’.1 Yet, though we can find some evidence of revolts against manorial authority before the fourteenth century (and some sources testifying to their successes), there is a complete absence of large-scale popular rebellions before the 1300s.2 Around the mid-fourteenth century, something happened across Europe that transformed lower-level struggles between landowners and those who worked the land into mass revolt. The previous silence in the historical record, as far as the voice of the ordinary people was concerned, was replaced by a deafening roar.

  Not without reason has the fourteenth century been dubbed ‘the worst century ever’.3 For those who were effectively subsistence farmers or landless wage labourers – much of the population – these were hard times indeed. Between 1315 and 1317, violent climate change inflicted such heavy damage on crops that food production fell well short of the demands of the growing population. In the Worcestershire manor of Halesowen, the number of adult males fell by 15 per cent between 1315 and 1321 after a period of 40 per cent growth during 1271–1311. The chronicler Thomas Walsingham claimed that the poor were reduced to eating the remains of diseased animals in an attempt to survive. Aside from the severe fluctuations in weather, between 1319 and 1321, outbreaks of murrain disease killed 25–50 per cent of sheep flocks, while rinderpest broke out among draft animals, making the tillage of land in some areas impossible. Combined with the long-term population boom that had occurred over the late thirteenth century, these natural disasters served to inflate both food prices and land rents. The economic and environmental crisis widened the gap between richer and poorer village families: the poor would starve to death while their wealthier neighbours took the opportunity to extend into their vacated tenancies.

  The iniquities of late medieval England’s economic system were compounded by the inbuilt inequality in taxation. Medieval and early modern governments had only one major drain on their revenues beyond the upkeep of the royal household: the cost of war. The disaster of Bannockburn in 1314 led Edward II to levy two heavy subsidies in 1315 and 1316, tax burdens that fell harder upon the poorer members of society – in that these subsidies were assessed on moveable goods alone and exempted landed income. At mid-century, war, drought, flood and famine had further strengthened the power of the landholders and further impoverished those at the bottom of the social scale.

  This situation was transformed by a human catastrophe unrivalled before or since. The arrival of the Black Death in 1348 in southern England led to a 47–8 per cent decrease in the country’s population. Some towns were completely wiped out: in the Oxfordshire village of Cuxham, all twelve villeins, or serfs, alive at the beginning of 1349 were dead by the end of the year. Henry Knighton, the cellarer of Leicester Abbey, described the Black Death’s passing over southern England as a dark and deadly shadow: ‘the dreadful pestilence made its way along the coast by Southampton and reached Bristol, where almost the whole strength of the town perished, as it were surprised by sudden death’.

  Agricultural production in some areas came to a complete halt through a combination of lack of labour and – as a result of population loss – lack of demand. Knighton recorded that while the human population was struck down by the Black Death, a similar epidemic raged through England’s livestock: ‘In the same year there was a great plague among sheep everywhere in the kingdom, so that in one place more than 5,000 sheep died in a single pasture; and they rotted so much that neither bird nor beast would touch them.’4 This depopulation, according to Knighton, left many towns and villages desolate: ‘and there were no houses left in them, all who had lived therein being dead; and it seemed likely that many such hamlets would never again be inhabited’. The sudden massive drop in population effectively wiped out England’s surplus manpower: ‘In the following winter there was such a shortage of servants for all sorts of labour as it was believed had never been before. For the sheep and cattle strayed in all directions without herdsmen, and all things were left with no one to care for them.’5

  The crisis of the mid-fourteenth century led to popular revolt, first in France, with the Jacquerie rising in 1358. In England, peasants seem to have been quick to realise the potential of the changed economic circumstances and the sudden shortage of labour brought on by the Black Death. The men of Rudheath in Cheshire threatened to quit the manor unless their rent was rebated by a third. Aghast, Knighton recorded the rapid escalation in wage demands that his own house faced: ‘In the … autumn [of 1350] no one could get a reaper for less than 8d with food, a mower for less than 12d with food.’6

  England’s landholders responded by attempting to turn the clock back to before 1348, via the device of a medieval wages policy enshrined in the Statute of Labourers. Occasioned, it said, by the ‘malice of servants, which were idle and not willing to serve after the pestilence’, the Statute required labourers to accept pay at pre-Black Death levels or suffer imprisonment. It also attempted to restrict their movement, demanding they remain in town and ordering an end to per diem pay, insisting that they serve ‘a whole year … not by the day’.7 The Statute of Labourers is often presented as a law honoured more in the breach than in the letter, a legal instrument that simply could not counter the changed demographic reality of late fourteenth-century England. However, the Crown’s determination to enforce the law should not be doubted. In the 1350s, 671 justices were employed to see it put into effect. Responsibility for its implementation quickly became subsumed into local power structures, handled by local justices of the peace, who were invariably the leading landholders in the county. This presented an opportunity for rank exploitation of the law by the landed classes. Lionel Bradenham, the largest landholder in the Essex village of Langenhoe, extorted unjust fines from his tenants with the assistance of an armed gang until the town of Colchester successfully petitioned for his dismissal as Justice of the Peace in 1362.

  The Statute was not the only means by which the ruling classes in England attempted to weaken the leverage of the peasants. Higher wages posed a threat not just to the pockets of landowners, but also to their social prestige and security. So-called sumptuary laws were passed that attempted to regulate the dress of the lower orders, for fear that a better-off yeomanry and peasantry would attempt to ape the appearance of their superiors, leading to the blurring of the relatively rigid lines of social demarcation. A statute of Edward III’s reign dictated the clothing appropriate for each class of society – yeomen and craftsmen were not to wear any clothes worth more than ‘forty shillings for the whole cloth’ and were forbidden to wear furs or precious jewels – and attempted to regulate the diet of the lower orders. Servants were not to eat meat or fish more than once a day, and the rest of their meals were to consist of milk, cheese, butter and bread.8 The eating of vast amounts of stolen meat during popular rebellions was probably as much a symbolic defiance of societal constraints as a way of feeding empty rebel bellies.9

  Aside from regulating dress and diet, the landholding classes in medieval England strove to control every aspect of the natural environment. Enclosures hemmed off common land. Later, fen drainage schemes would dry out the reedbeds that had provided fishing, fuel (in the form of peat) and building materials for the poor. The creation of private ponds and lakes, well stocked with fish, reflected the nobility’s desire to enclose water as well as earth. Harsh gaming laws guarded against the threat to noble estates posed by poaching. The poor’s lack of any other access to meat or fish m
eant, nonetheless, that the theft of game continued, and occasionally on an impressive scale. In 1356, in just one night, the Earl of Arundel lost more than a hundred swans from his ponds at Arundel Castle.10 As we shall see, during popular rebellions, the mass slaughter of game animals was sometimes employed as a symbolic warning to the upper classes.

  After 1348, the possibilities for physical as well social mobility were also severely curtailed by new laws. Aside from the provisions already enacted through the Statute of Labourers, an act of 1360 instituted further punishments for labourers who left their service to go to another town or county. ‘Masterless men’ – labourers who roamed the country looking for work, unbound to any particular lord – were targeted the following year. These men were seen as a particular threat, living, as they did, outside of the control of the manorial system and beyond the accepted norms of patriarchal society, which extended in theory from the macrocosm of the nation to the microcosm of the family. The 1361 Justices of the Peace Act gave JPs the power

  to inquire of all those that have been pillors and robbers in the parts beyond the sea, and be now come again, and go wandering, and will not labor as they were wont in times past: and to take and arrest all those that they may find by indictment, or by suspicion, and to put them in prison; and to take of all them that be not of good fame, where they shall be found, sufficient surety and mainprise of their good behavior towards the king and his people, and the other duly to punish.11