PART III.

MAGNA CARTA: ITS FORM AND CONTENTS.

I. Its Prototypes: Earlier Charters.

However wide and scattered were the sources from which the substance of the Great Charter was derived, its descent, on its formal side, can readily be traced, through an unbroken line of antecedents, back to a very early date. Magna Carta is directly descended from the Charter of Liberties of Henry I., and that, again, was a written supplement to the vows taken by that monarch at his coronation, couched in similar terms to those invariably sworn at their anointing by the Anglo-Saxon kings of England, from Edgar to Edward Confessor.

The ties which thus connect King John’s promises of good government with the promises to the same effect made at their coronation by the princes of the old dynasty of Wessex are by no means of an accidental nature. Not only is identity of substance, in part at least, maintained throughout; but the promises were the outcome of an essential feature of the old English constitution—a feature so deeply rooted that it survived the shock of the Norman Conquest. This feature, so fundamental and so productive of great issues, was the elective or quasi-elective nature of the monarchy. During the Anglo-Saxon era, two rival principles, the elective and the hereditary, struggled for the mastery in determining the succession to the Crown. In an unsettled state of society, nations cannot allow the sceptre to pass into the hands of an infant or a weakling. When a king died, leaving a son of tender age, and survived by a brother of acknowledged ability and mature powers, it was only natural that the latter should, in the interests of peace and order, be preferred to the throne. In such cases, the strict principle of primogeniture was not followed. The magnates of the kingdom, the so-called Witan, claimed the right to choose a fitting successor; yet in so doing they usually paid as great regard to the claims of kindred as circumstances permitted. The exact relations between the elective and the hereditary principles were never laid down with absolute precision. Indeed, the want of definition in all constitutional questions was characteristic of the age—a truth not sufficiently apprehended by writers of the school of Kemble and Freeman. The practice usually followed by the Witenagemot was to select as the new ruler some kinsman of the late king standing in close relationship to him, and at the same time competent for the high post. The king-elect thus appointed had, before his title was complete, to undergo a further ceremony: he required to be solemnly anointed by the representative of the spiritual power, and this gave to the Church an important share in deciding who should be king. At an early date—exactly how early is not known, but certainly not later than the days of Edgar—it became the invariable practice for the officiating archbishop to exact an oath of good government from the king-elect before his final coronation. The precise terms of this oath became stereotyped; and, as administered by Dunstan to King Ethelred, they are still extant.[163]

Footnote 163:

The words have come down to us in two versions: one Anglo-Saxon and the other Latin. The former is preserved in _Memorials of St. Dunstan_ (Rolls Series), p. 355, where it is translated by Dr. Stubbs:—

"In the name of the Holy Trinity I promise three things to the Christian people and my subjects: first, that God’s church and all Christian people of my dominions hold true peace; the second is that I forbid robbery and all unrighteous things to all orders; and third, that I promise and enjoin in all dooms, justice and mercy, that the gracious and merciful God of his everlasting mercy may forgive us all, who liveth and reigneth." The name of the King is not mentioned, and may have been either Edward or Ethelred, but is usually identified with the latter. See Kemble, _Saxons in England_, II. 35.

It may be briefly analyzed into three promises—peace to God’s Church and people; repression of violence in men of every rank; justice and mercy in all judgments. Such was the famous tripartite oath taken, after celebration of mass, over the most sacred relics laid on the high altar, in presence of Church and people, by the kings of the old Anglo-Saxon race. When William I., anxious in all things to fortify the legality of his title, took the oath in this solemn form, he created a precedent of tremendous importance, although he may have regarded it at the moment as an empty formality.[164]

Footnote 164:

Two independent authorities, both writing from the English point of view, Florence of Worcester, and the author of the Worcester version of the _Chronicle_, agree that the Conqueror took the oath; the Norman authorities neither contradict nor confirm this. “William of Poitiers and Guy are silent about the oath.” Freeman, _Norman Conquest_, III. 561, note.

This step was doubly important: as a link with the past, as a precedent for the future. A bridge was thus thrown across the social and political gulf of the Norman Conquest, preserving the continuity of the monarchy and of the basis on which it was founded. The elective character of the kingship, the need for coronation by the Church, and (the natural supplement of both) this tripartite oath containing promises of good government, valuable though vague, were all preserved.

This was of vital moment, because limits were thereby placed, in theory at least, on prerogatives that threatened in practice to become absolute. Undoubtedly the power of the Norman kings was very great, and might almost be described as irresponsible despotism, tempered by the fear of rebellion. Three forces indeed acted as curbs: the practical necessity for consulting the Curia Regis (or assembly of crown vassals) before any vital step was taken; the restraining influence of the national Church, backed by the spiritual powers of Rome; and the growth, in a vague form, it is true, of a body of public opinion confined as yet to the upper classes.

All these elements counted for something, but failed to restrain sufficiently even an average king; while they were powerless against a strong ruler like William I. The only moment at which the Crown might be taken at a clear disadvantage was during the interregnum which followed the death of the last occupant of the throne. Two or more rival heirs might aspire to the high position, and would be eager to make promises in return for support. Thus, William Rufus, at his father’s death, anxious to prevent his elder brother, Duke Robert, from making good his claim to the English throne, succeeded chiefly through the friendship of Lanfranc. To gain this, he was compelled to make promises of good government, and to follow his father’s precedent by taking the oath in the ancient form, in which it had been administered by Dunstan to Ethelred. In the same reign began the practice of supplementing verbal promises by sealed charters, which in some respects must be regarded simply as the old coronation oath confirmed, expanded, and reduced to writing. No such charter was indeed issued either by Rufus or by his father when they were crowned; but the younger William, at a critical period later in his reign, seems to have granted a short Charter of Liberties, the exact contents of which have not come down to us. At the death of Rufus, his younger brother, Henry I., found himself hard pressed in the competition for the English Crown by Duke Robert (the Conqueror’s eldest son). By a treaty made at Caen in 1091, Duke Robert and Rufus had agreed that each should constitute the other his heir. Thus Henry was, in a sense, a usurper, and this circumstance made it necessary for him to bid high for influential support.[165] It is to this doubtful title, coupled with the knowledge of widespread disaffection, that Englishmen owe the origin of the first Charter of Liberties that has come down to us.[166]

Footnote 165:

Stubbs, _Const. Hist._, I. 328-9, and authorities there cited.

Footnote 166:

See Appendix.

This charter was the price paid by Henry for the support he required in his candidature for the Crown. In granting it he admitted, in a sense, the contractual basis of his kingship. In discussing its tone and general tenor there is ample room for differences of opinion. Dr. Stubbs[167] maintains that Henry thereby “definitely commits himself to the duties of a national King.” Writers of almost equal authority somewhat modify this view, holding that, although circumstances forced Henry to pose as the leader of the entire nation, yet nothing of this could be traced in the charter, the basis of which seems to have been feudal rather than national.[168]

Footnote 167:

_Const. Hist._, I. 331.

Footnote 168:

See Prothero, _Simon de Montfort_, 16: “That charter had been mainly of a feudal character; it contained no provision for, and scarcely even hinted at, a constitutional form of government.”

This view is strengthened by analysis of the actual provisions of the charter. While important and definite concessions were made to the Church and to the Crown-tenants, those to the people at large were few and vague—so vague as to be of little practical use. The Church, it was declared, “should be free,” a wide phrase to which these particulars were added, namely, that the wardship of sees during vacancies should not be sold or hired out, and that no sums should be demanded in name of reliefs from the lands or tenants of a see when a death occurred. The “baronage” (to use a convenient anachronism for “the Crown-tenants considered collectively”) received redress of their worst grievances in regard to reliefs and other feudal obligations. In this respect Henry’s charter anticipated and even went beyond some of the reforms of 1215.[169]

Footnote 169:

Details are reserved for consideration under the feudal clauses of the Great Charter.

It is true that the mass of the people may have indirectly benefited by many of these provisions; but when we look for measures of a directly popular character, only three can be found, namely, promises to enforce peace in the land, to take away evil customs, and to observe the laws of Edward Confessor as amended by William I. This is too slender a basis on which to found a claim to take rank as a “national king,” even if Henry had any intention of keeping his promises. It is now notorious that not a single promise remained unbroken.[170]

Footnote 170:

See Round, _Feudal England_, 227, and Pollock and Maitland, I. 306.

From another point of view the charter is a criticism on the administration of Rufus (and to some extent also of the Conqueror), combined with a promise of amendment. Henry thus posed as a reformer, and forswore the evil customs of his father and brother. The great value of the charter, however, lies in this, that it is the first formal acceptance (published under seal and in proper legal shape) of the old law of Anglo-Saxon England by a ruler of the new alien dynasty; yet in this Henry was only completing what his father had begun. These considerations help to account for the almost exaggerated importance attached to Henry’s charter during the reign of John.

If all efforts made to defeat Henry’s succession failed, the succession of his daughter Matilda was disputed triumphantly. Stephen, taking advantage of his cousin’s absence and of her personal unpopularity, made a rapid descent on England with the spasmodic energy which characterized him, and successfully snatched the Crown. Trained in English ways on English soil, he was quickly on the spot and very popular. These features in his favour, however, did not render his position entirely secure as against the daughter and heiress of so strong a King as Henry I., to whom, indeed, Stephen himself, with all the magnates of England, had already thrice sworn allegiance. He was only one of two competitors for the Crown, with chances nearly equal. From the moment of the old King’s death, “the Norman barons treated the succession as an open question.” In these words of Bishop Stubbs,[171] Mr. J. H. Round finds[172] the keynote of the reign. Stephen was never secure on his throne, and had to make indiscriminate promises first to obtain, and afterwards to retain, his position. He was thus prepared to bid much higher for support than Henry had felt compelled to do. Adherents had to be gained painfully, one by one, by the grant of special favours to every individual whose support was worth the buying.

Footnote 171:

Stubbs, _Const. Hist._, I. 345.

Footnote 172:

Round, _Geoffrey de Mandeville_, p. 1.

Bargains were struck with the Londoners, with Stephen’s brother Henry of Blois (Bishop of Winchester), with the Keepers of the King’s Treasure, with the Archbishop of Canterbury, and with the Justiciar (Bishop Roger of Salisbury). The support of the two last mentioned carried with it the support of the Church and of the administrative staff of the late king, but was only gained by wide concessions. Thus Stephen, like William of Orange, five centuries later, agreed to become “king upon conditions.” A Charter of Liberties and a solemn oath securing "the liberty of the Church"—a vague phrase, it is true, but none the less dangerous on that account—together formed the price of Stephen’s consecration; and this price was not perhaps too high when we remember that "election was a matter of opinion, coronation a matter of fact"—a solemn sacrament that could hardly be undone.[173]

Footnote 173:

Round, _Geoffrey de Mandeville_, p. 6. Mr. Round, _ibid._, p. 438, explains that the reason of the omission from this earlier charter of Stephen (unlike the more lengthy and important one which followed four months later) of all mention of the Church was that Stephen, at the time of granting, supplemented it by the verbal promise recorded by William of Malmesbury, _de libertate reddenda ecclesiae et conservanda_.

Even this important ceremony, however, left Stephen’s throne a tottering one; he was compelled to buy the adherence of powerful magnates by lavish concessions of land and franchises; and various charters in favour of individual nobles still exist as witnesses to such bribes. The process by which he built up a title to the Crown seems to have culminated in the Easter of 1136, when he secured the support of Matilda’s half-brother Robert, Earl of Gloucester, whose lead was quickly followed by other influential nobles. All of these new adherents, however, performed homage to the King under an important reservation, namely, that their future loyalty would be strictly conditional on the treatment extended to them by Stephen. That unfortunate monarch accordingly, by tolerating such conditional allegiance, was compelled to acknowledge the inherent weakness of his position even in the moment of his nominal triumph.[174]

Footnote 174:

The whole incident is so remarkable that it seems well to cite the exact words of William of Malmesbury, II. 541: “_Itaque homagium regi fecit sub conditione quadam, scilicet quamdiu ille dignitatem suam integre custodiret et sibi pacta servaret_.”

These important transactions took place apparently at Oxford,[175] and at the same time the King issued his second or Oxford Charter, which embodied and expanded the contents of earlier charters and oaths. This Oxford Charter, the date of which has been proved to be early in April,[176] is noteworthy alike for the circumstances in which it was granted, placing as it did the copestone on the gradual process by which Stephen was “elected” king, and also for its contents, which combined the earlier oath to the Church and the vague, unsatisfactory earlier charter to the people, with the new conditions extorted by Earl Robert and his followers.

Footnote 175:

Round, _Geoffrey_, 22.

Footnote 176:

Round, _Geoffrey_, 23–4.

The opening words, in which Stephen describes himself as “King of the English,” may be read as a laboured attempt to set forth a valid title to the throne. All reference to predecessors is carefully avoided, and the usurper declares himself to be king "by appointment of the clergy and people, by consecration of the archbishop and papal legate, and by the Pope’s confirmation."[177]

Footnote 177:

Stephen was not justified in this last assumption. See Round, _Geoffrey_, 9.

Perhaps its chief provisions are those in favour of the Church, supplementing a vague declaration that the Church should be “free” by specific promises that the bishops should have exclusive jurisdiction and power over churchmen and their goods, along with the sole right to superintend their distribution after death. Here was a clear confirmation of the right of the Courts Christian to a monopoly of all pleas affecting the clergy or their property. It is the first distinct enunciation in England of the principle afterwards known as "benefit of clergy"—and that, too, in a form more sweeping than was ever afterwards repeated. Stephen also explicitly renounced all rights inherent in the Crown to wardship over Church lands during vacancies—a surrender never dreamed of by either Henry I. or Henry II.

Grants to the people at large followed. A general clause promising peace and justice was again supplemented by specific concessions of more practical value, namely, a promise to extirpate all exactions, unjust practices, and “miskennings” by sheriffs and others, and to observe good, ancient, and just customs in respect of murder-fines, pleas, and other causes.

Strangely enough, there is only one provision specially benefiting feudal magnates, the King’s disclaimer of all tracts of land afforested since the time of the two Williams. The omission of further feudal concessions must not be attributed either to Stephen’s strength, or to any spirit of moderation or self-sacrifice in the magnates. Each baron of sufficient importance had already extorted a special charter in his own favour, more emphatic and binding from its personal nature, and accordingly more valued than a mere general provision in favour of all and sundry. Such private grants generally included a confirmation of the grantee’s right to maintain his own feudal stronghold, thus placing him in a position of practical independence.

It is instructive to compare these wide promises of Stephen with the meagre words of the charter granted by Henry of Anjou at or soon after his Coronation.[178] Henry II. carefully omits all mention of Stephen and his charters, not, as is sometimes supposed, because he did not wish to acknowledge the existence of a usurper, but because of that usurper’s lavish grants to the Church. Henry had no intention either to confirm “benefit of clergy” in so sweeping a form as Stephen had done, or to renounce wardship over the lands of vacant sees.

Footnote 178:

The charter of Henry II. is given in Bémont, _Chartes_, 13, and in _Select Charters_, 135. It seems worth while to mention in this connection a notable mistake of a writer whose usual accuracy is envied by his brother historians. Mr. J. H. Round (_Engl. Hist. Rev._, VIII. 292) declares that “the royal power had increased so steadily that Henry II. and his sons had been able to abstain from issuing charters, and had merely taken the old tripartite oath.”

To the Church, as to the barons, Henry Plantagenet confirms only what his grandfather had already conceded. Even when compared with the standard set by the charter of Henry I., that of the younger Henry is shorter and less explicit, and therefore weaker and more liable to be set aside—features which justified Stephen Langton in his preference for the older document. If Henry II. granted a short and grudging charter, neither of his sons, at their respective coronations, granted any charter at all. Reasons for the omission readily suggest themselves; the Crown had grown strong enough to dispense with this unwelcome formality, partly because of the absence of rival competitors for the throne, and partly because of the perfection to which the machinery of government had been brought. The utmost which the Church could extract from Richard and John as the price of their consecration was the renewal of the three vague promises contained in the words of the oath, now taken as a pure formality. The omission to grant charters was merely one symptom of the diseases of the body politic consequent on the overweening power of the Crown, and proves how urgent was the need of some such re-assertion of the nation’s liberties as came in 1215.

John, at least, was not to be allowed to shake himself free from the obligations of his oath, or from the promise to confirm the ancient laws and customs of the land therein contained. Stephen Langton, before absolving him from the effects of his quarrel with Rome, compelled him to renew the terms of the coronation oath.[179]

Footnote 179:

See _supra_, p. 32, and Round, _Eng. Hist. Rev._, VIII. 292.

Nor was this all; from a meeting held at St. Albans on 4th August, 1213, writs were issued in the King’s name to the various sheriffs, bidding them observe the laws of Henry I. and abstain from unjust exactions.[180] Three weeks later (on 25th August), the production of a stray copy of Henry’s charter is said, by Roger of Wendover, to have made a startling impression on all present,[181] and the same charter was a second time produced at Bury St. Edmunds, on 4th November, 1214, and was accepted by the malcontents as a model which, modified and enlarged, might serve as a basis for the redress of the grievances of the reign.[182]

Footnote 180:

_Supra_, p. 34.

Footnote 181:

_Supra_, p. 35.

Footnote 182:

_Supra_, p. 38.

It is thus both excusable and necessary to place much stress on this sequence of coronation oaths and charters, as contributing both to the form and to the substance of the Magna Carta of John. Yet the tendency to take too narrow a view of the antecedents of the Great Charter must be carefully guarded against. Many ingredients went to the making of it. Numerous reforms of Henry II., whether embodied or not in one or more of the ordinances or assizes that have come down to us, must be reckoned among their number, equally with those constitutional documents which happen to be couched in the form peculiar to charters granted under the king’s great seal. It is also necessary to remember the special grants made by successive kings of England to the Church, to London and other cities, and to individual prelates and barons. In a sense, the whole previous history of England went to the making of Magna Carta. The sequence of coronation oaths and charters is only one line of descent; the Great Charter of John can trace its origin through many other lines of distinguished ancestors.

II. Magna Carta: its Form and Juridical Nature.

Much ingenuity has been expended, without adequate return, in the effort to discover which particular category of modern jurisprudence most exactly describes the Great Charter of John. Is it an enacted law, or a treaty; the royal answer to a petition; or a declaration of rights? Is it a simple pact, bargain, or agreement between contracting parties? Or is it a combination of two or more of these? Something has been said in favour of almost every possible view, perhaps more to the bewilderment than to the enlightenment of students of history uninterested in legal subtleties.

The claim of Magna Carta to rank as a formal act of legislation has been supported on the ground that it was promulgated in what was practically a _commune concilium_. King John, it is maintained, met in a national assembly all the estates of his realm who were then endowed with political rights, and these concurred with him in the granting of Magna Carta. The consent of all who claimed a share in the making or repealing of laws—archbishops, bishops, abbots, earls, and crown-tenants, great and small—entitles the Charter to rank as a regular statute.

Against this view, however, technical informalities may be urged. Both the composition of the Council and the procedure adopted there, were irregular. No formal writs of summons had been issued, and, therefore, the meeting was never properly constituted; many individuals with the right and duty of attendance had no opportunity to be present. Further, the whole proceedings were tumultuary; the barons assembled in military array and compelled the consent of John by turbulence and show of force. On these grounds, modern jurisprudence, if appealed to, would reject the claim of the Charter to be enrolled as an ordinary statute.

On the other hand, it may be argued that Magna Carta, while something less than a law, is also something more. A law made by the king in one national assembly might be repealed by the king in another; whereas the Great Charter was intended by the barons to be unchangeable. It was granted to them and their heirs for ever; and, in return, a price had been paid, namely, the renewal of their allegiance—a fundamental condition of John’s continued possession of the throne.[183]

Footnote 183:

The _quid pro quo_ received by the King was merely the promise of _conditionel_ homage, dependent (as we learn from chapter 63) on his observance of the conditions of the Charter. This arrangement may be compared with the agreement made between Stephen and the Earl of Gloucester in 1136 (see _supra_, p. 120), and it bears some points of analogy with the procedure adopted by the framers of the Bill of Rights, who inserted a list of conditions in the Act of Parliament which formed the title of William and Mary to the throne of England.

Magna Carta has also been frequently described as a treaty. Such is the verdict of Dr. Stubbs.[184] “The Great Charter, although drawn up in the form of a royal grant, was really a treaty between the King and his subjects.... It is the collective people who really form the other high contracting party in the great capitulation.”[185] This view receives some support from certain words contained in chapter 63 of the Charter itself: “_Juratum est autem tam ex parte nostra quam ex parte baronum, quod haec omnia supradicta bona fide et sine malo ingenio observabuntur_.”

Footnote 184:

_Const. Hist._, I. 569.

Footnote 185:

Mr. Prothero is of the same opinion (_Simon de Montfort_, 15). It was “in reality a treaty of peace, an engagement made after a defeat between the vanquished and his victors.”

It is not sufficient to urge against this theory, as is sometimes done, that the concord was entered into in bad faith by one or by both of the contracting parties. It is quite true that the compromise it contained was accepted merely as a cloak under which to prepare for war; yet jurisprudence, in treating of formal documents granted under seal, pays no attention to sincerity or insincerity, but looks merely to the formal expression of consent.

Interesting questions might also be raised as to how far it is correct to extend to treaties the legal rule which declares void or voidable all compacts and agreements induced by force or fear. In a sense, every treaty which ends a great war would fall under such condemnation, since the vanquished nation always bows to _force majeure_. Such claims as the Great Charter may have to rank as a treaty are not, therefore, necessarily weakened by John’s subsequent contention that when granting it he was not a free agent.

There is, however, a more radical objection. A treaty is a public act between two contracting powers, who must, to meet the requirements of modern jurisprudence, be independent States or their accredited agents; while John and his opponents were merely fragments of one nation or State, torn asunder by mutual fears and jealousies.

Some authorities discard alike the theory of legislation and the treaty theory to make way for a third, namely, that Magna Carta is merely a contract, pact, or private agreement. M. Emile Boutmy is of this opinion. "Le caractère de cet acte est aisé à définir.[186] Ce n’est pas précisément un traité, puisqu’il n’y a pas ici deux souverainetés légitimes ni deux nations en présence; ce n’est pas non plus une loi; elle serait entachée d’irrégularité et de violence; c’est un compromis ou un pacte."[187]

Footnote 186:

Here we differ from him.

Footnote 187:

_Études de droit constitutionnel_, 41.

Thus considered, the proudest act of the national drama would take its place in the comparatively humble legal category which includes such transactions as the hire of a waggon or the sale of a load of corn. There are, however, fatal objections to this theory also. It is difficult to see how the plea of “force,” if sufficient (as M. Boutmy urges) to render null the enactment of a public law, would not be even more effective in reducing a private agreement. If Magna Carta has no other basis than the declared consent of the contracting parties, it seems safer to describe it as a public treaty than as a private or civil pact devoid of political significance.

Other theories also are possible; as, for example, that the Great Charter is of the nature of a Declaration of Rights, such as have played so prominent a part in the political history of France and of the United States; while a recent American writer on English constitutional development seems almost to regard it as a code, creating a formal constitution for England—in a rude and embryonic form, it is true. “If a constitution has for its chief object the prevention of encroachments and the harmonizing of governmental institutions, Magna Carta answers to that description, at least in part.”[188]

Footnote 188:

Prof. Jesse Macy, _English Constitution_, 162.

It would be easy to find examples of attempts to compromise between these competing theories, by combining two or more of them. Thus, a high English authority declares that “the Great Charter is partly a declaration of rights, partly a treaty between Crown and people.”[189]

Footnote 189:

Sir William R. Anson, _Law of the Constitution_, I. 14.

The essential nature of what took place at Runnymede, in June, 1215, is plain, when stripped of legal subtleties. A bargain was struck between the King and the rebel magnates, the purport of which was that the latter should renew their oaths of fealty and homage, and give security that they would keep these oaths, while John, in return, granted “to the freemen of England and their heirs for ever” the liberties enumerated in sixty-three chapters. No one thought of asking whether the transaction thus concluded was a “treaty” or a private “contract.”

The terms of this bargain, however, had to be drawn up in proper legal form, so as to bear record for all time to the exact nature of the provisions therein contained, and also to the authenticity of John’s consent thereto. It was, therefore, reduced to writing, and the resulting document was naturally couched in the form invariably used for all irrevocable grants intended to descend from father to son, namely, a feudal charter, authenticated by the addition of a seal—just as in the case of a grant of land, and with many of the clauses appropriate to such a grant.[190]

Footnote 190:

In strict legal theory the complete investiture of the grantee required that “charter” should be followed by “infeftment” or delivery (real or constructive) of the subject of the grant. In the case of such intangible things as political rights and liberties, the actual parchment on which the Charter was written would be the most natural symbol to deliver to the grantees.

John grants to the freemen of England and their heirs certain specified rights and liberties, as though these were merely so many hides or acres of land. _Concessimus etiam omnibus liberis hominibus regni nostri, pro nobis et haeredibus nostris in perpetuum, omnes libertates subscriptas, habendas et tenendas, eis et haeredibus suis, de nobis et haeredibus nostris._[191] The legal effect of such a grant is hard to determine; and insuperable difficulties beset any attempt to expound its legal consequences in terms of modern law.[192] In truth, the form and substance of Magna Carta are badly mated. Its substance consists of a number of legal enactments and political and civil rights; its form is borrowed from the feudal lawyer’s book of styles for conferring a title to landed estate.[193]

Footnote 191:

See chapter 1. The grant which thus purports to be perpetually binding on John’s heirs, was in practice treated as purely personal to John, and requiring confirmation by his son. Yet this also was in strict accordance with feudal theory, which required the heir to complete his title to his deceased father’s real estate by obtaining a Charter of Confirmation from his lord, for which he had to pay “relief.” The liberties of the freemen were only a new species of real estate.

Footnote 192:

Prof. Maitland, _Township and Borough_, p. 76, explains some of the absurdities involved: "Have you ever pondered the form, the scheme, the main idea of Magna Charta? If so, your reverence for that sacred text will hardly have prevented you from using in the privacy of your own minds some such words as ‘inept’ or ‘childish.’ King John makes a grant to the men of England and their heirs. The men of England and their heirs are to hold certain liberties of that prince and his heirs for ever. Imagine yourself imprisoned without the lawful judgment of your peers, and striving to prove while you languish in gaol that you are heir to one of the original grantees. Nowadays it is only at a rhetorical moment that Englishmen ‘inherit’ their liberties, their constitution, their public law. When sober, they do nothing of the kind. But, whatever may have ‘quivered on the lip’ of Cardinal Langton and the prelates and barons at Runnymead, the speech that came was the speech of feoffment. Law, if it is to endure, must be inherited. If all Englishmen have liberties, every Englishman has something, some thing, that he can transmit to his heir. Public law cannot free itself from the forms, the individualistic forms of private law."

Footnote 193:

Pollock and Maitland, I. 150, emphasize this disparity. “In form a donation, a grant of franchises freely made by the king, in reality a treaty extorted from him by the confederate estates of the realm, ... it is also a long and miscellaneous code of laws.” Cf. also _Ibid._, I. 658.

The results of this inquiry seem then to be completely negative. It is useless to describe phenomena of the thirteenth century in modern phraseology which would have been unintelligible to contemporaries. Medieval lawyers experienced great difficulties in trying to express the actual facts of their day in terms of such categories of the Roman jurisprudence as had survived the fall of Rome and Roman civilization. There is no one of the ancient or modern categories which can be applied with confidence to the Great Charter or to the transaction of which it is the record. Magna Carta may perhaps be described as a treaty or a contract which enacts or proclaims a number of rules and customs as binding in England, and reduces them to writing in the unsuitable form of a feudal charter granted by King John to the freemen of England and their heirs.

III. Magna Carta: its Contents and Characteristics.

The confirmation of the rights enumerated in the sixty-three chapters of the Charter represented the price paid by John for the renewed allegiance of the rebels. These rights are fully discussed, one by one, in the second part of the present volume: a brief description of their more prominent characteristics, when viewed as a collective whole, is, therefore, all that is here required.

In the attempt to analyze the leading provisions, various principles of classification have been adopted. Three of these stand out prominently: the various chapters may be arranged according to the functions of the central government which they were intended to limit; according to their own nature as progressive, reactionary, or merely declaratory; and, finally, according to the classes of the community which reaped the greatest benefit.

I. _Provisions classified according to the various prerogatives of the Crown which they affect._

Dr. Gneist[194] adopts this principle of division, and arranges the chapters of Magna Carta into five groups according as they place legal limitations (1) on the feudal military power of the Crown, (2) on its judicial power, (3) on its police power, (4) on its financial power, or (5) furnish a legal sanction for the enforcement of the whole. In spite of Dr. Gneist’s high authority, it is doubtful whether an analysis of Magna Carta upon these somewhat arbitrary lines throws much light on its main objects or results. Such a division, if convenient for some purposes, seems artificial and unreal, since it is founded on distinctions which were not clearly formulated in the thirteenth century. The adoption of such a principle of classification with reference to a period when the various functions of the executive were still blended together indiscriminately is somewhat of an anachronism.[195]

Footnote 194:

_Hist. Engl. Const._, Chapter XVIII.

Footnote 195:

Dr. Gneist indeed almost confesses this, when, in discussing the limitations of the financial power, he feels constrained to say that many of these are “already comprised in the provisions touching the feudal power.”

II. _Provisions classified according as they are of a progressive, reactionary, or declaratory nature._

Among the many questions pressing for answer, none seem more natural than those which inquire into the relations between the promises made in the Charter and the system of government actually at work under Henry of Anjou and his sons; or the relations between these promises and the still older laws of Edward Confessor.

The view generally entertained is that the provisions of Magna Carta are chiefly, if not exclusively, of a declaratory nature. The Great Charter has for many centuries been described as an attempt to confirm and define existing customs rather than to change them. In the words of Blackstone,[196] writing in 1759, “It is agreed by all our historians that the Great Charter of King John was for the most part compiled from the ancient customs of the realm, or the laws of King Edward the Confessor, by which they usually mean the common law, which was established under our Saxon princes, before the rigours of feudal tenures and other hardships were imported from the continent.” Substantially the same doctrine has been enunciated only the other day, by our highest authority. "On the whole, the charter contains little that is absolutely new. It is restorative. John in these last years has been breaking the law; therefore the law must be defined and set in writing.[197] This view seems, on the whole, a correct one; the insurgents in 1215 professed to be demanding nothing new, but merely a return to the good laws of Edward Confessor, as supplemented by the promises contained in the charter of Henry I. An unbroken thread runs back from Magna Carta to the laws and customs of Anglo-Saxon England and the old coronation oaths of Ethelred and Edgar. Yet the Great Charter contained much that was unknown to the days of the Confessor and had no place in the promises of Henry I. In many points of detail the Charter must look for its antecedents rather to the administrative changes introduced by Henry II. than to the old customary law that prevailed before the Conquest.

Footnote 196:

_Great Charter_, vii.

Footnote 197:

Pollock and Maitland, I. 151.

Thus it is not sufficient to describe Magna Carta merely as a declaratory enactment; it is necessary to distinguish between the different sources of what it declared. A fourfold division may be suggested. (1) Magna Carta embodied and handed down to future ages some of the usages of the old customary law of Anglo-Saxon England, unchanged by the Conqueror or his successors, now confirmed and purified from abuses. (2) In defining feudal incidents and services, it confirmed many rules of the feudal law brought into England by the Normans subsequently to 1066. (3) It also embodied many provisions of which William I. and even Henry I. knew no more than did the Anglo-Saxon kings—innovations introduced for his own purposes by Henry of Anjou, but, after half a century of experience, now accepted loyally even by the most bitter opponents of the Crown. In the words of Mr. Prothero, “We find ... the judicial and administrative system established by Henry II. preserved almost intact in Magna Carta, though its abuse was carefully guarded against.”[198] Finally, (4) in some few points, the Charter actually aimed at going farther than Henry II., great reformer as he was, had intended to go. Thus, to mention only two particulars, the Petty Assizes are to be taken in every county four times a year, while sheriffs and other local magistrates are entirely prohibited from holding pleas of the Crown.

Footnote 198:

_Simon de Montfort_, 17.

There are two further reasons why we cannot be content with an explanation which dismisses Magna Carta with the bald statement that its provisions are merely of a declaratory nature. History has proved the universal truth of the theory that a purely declaratory enactment is impossible; since the mere lapse of time, by producing an altered historical context, necessarily changes the purport of any Statute when re-enacted in a later age. Even if words identically the same are repeated, the new circumstances read into them a new meaning. Such is the case even when the framers of these re-enactments are completely sincere, which, often, they are not. It is no unusual device for innovators to render their reforms more palatable by presenting them disguised as returns to the past. Magna Carta affords many illustrations of this. Its clauses, even where they profess to be merely confirmatory of the _status quo_, in reality alter existing custom.

Further, it is of vital importance to bear in mind the exact nature of the provisions confirmed or declared. A re-statement of some of the more recent reforms of Henry II. (or of those of Archbishop Hubert Walter, following in his footsteps) leads logically to progress rather than to mere stability; while the professed confirmation of Anglo-Saxon usages or of ancient feudal customs, fast disappearing under the new _régime_, implies retrogression rather than standing still. Chapters 34 and 39 of Magna Carta, for example, are of this latter kind. They really demand a return to the system in vogue prior to the innovations of Henry II. when they declare in favour of feudal jurisdictions. Thus, some of the provisions of the Great Charter which, at a casual glance, appear to be correctly described as declaratory, are, in reality, innovations; while others tend towards reaction.

III. _Provisions classified according to the estates of the community in whose favour they were conceived._

This third principle of arrangement would stand condemned as completely misleading, if it were necessary to accept as true, in any literal sense, the assertions so frequently made concerning the absolute equality of all classes and interests before the law—as that law was embodied in Magna Carta. Here, then, we are face to face with a fundamental question of immense importance: Does the Great Charter really, as the orthodox traditional view so vehemently asserts, protect the rights of the whole mass of humble Englishmen equally with those of the proudest noble? Is it really a great bulwark of the constitutional liberties of the nation, considered as a nation, in any broad sense of that word? Or is it rather, in the main, a series of concessions to feudal selfishness wrung from the King by a handful of powerful aristocrats? On such questions, learned opinion is sharply divided, although an overwhelming majority of authorities range themselves on the popular side, from Coke (who assumes in every page of his _Second Institute_ that the rights won in 1215 were as valuable for the villein as for the baron) down to writers of the present day. Lord Chatham in one of his great orations[199] insisted that the barons who wrested the Charter from John established claims to the gratitude of posterity because they “did not confine it to themselves alone, but delivered it as a common blessing to the whole people”; and Sir Edward Creasy,[200] in citing Chatham’s words with approval, caps them with more ecstatic words of his own, declaring that one effect of the Charter was “to give and to guarantee full protection for property and person to every human being that breathes English air.” Lord Chatham indeed spoke with the unrestrained enthusiasm of an orator; yet staid lawyers and historians like Blackstone and Hallam seem to vie with him in similar expressions. “An equal distribution of civil rights to all classes of freemen forms the peculiar beauty of the charter”; so we are told by Hallam.[201] Bishop Stubbs unequivocally enunciated the same doctrine. “Clause by clause the rights of the commons are provided for as well as the rights of the nobles.... This proves, if any proof were wanted, that the demands of the barons were no selfish exactions of privilege for themselves.”[202]

Footnote 199:

House of Lords, 9th January, 1770.

Footnote 200:

_History of English Constitution_, 151.

Footnote 201:

_Middle Ages_, II. 447.

Footnote 202:

_Const. Hist._, I. 570-1.

Dr. Gneist is of the same opinion. “Magna Carta was a pledge of reconciliation between all classes. Its existence and ratification maintained for centuries the notion of fundamental rights as applicable to all classes in the consciousness that no liberties would be upheld by the superior classes for any length of time, without guarantees of personal liberties for the humble also.”[203]

Footnote 203:

Gneist, _Hist. of Engl. Parl._ (trans. by A. H. Keane), 103. Cf. his _Const. Hist._ (trans. by P. A. Ashworth), 253. “A separate right for nobles, citizens, and peasants, was no longer possible.”

“The rights which the barons claimed for themselves,” says John Richard Green,[204] before proceeding to enumerate them, “they claimed for the nation at large.” The testimony of a very recent writer, Dr. Hannis Taylor,[205] may close this series. “As all three orders participated equally in its fruits, the great act at Runnymede was in the fullest sense of the term a national act, and not a mere act of the baronage on behalf of their own special privileges.” It would be easy to add to this “cloud of witnesses,” but enough has been said to prove that it has been a common boast of Englishmen, for many centuries, that the provisions of the Great Charter were intended to secure, and did secure, the liberties of every class and individual of the nation, not merely those of the feudal magnates on whose initiative the quarrel was raised.

Footnote 204:

_Short History of the English People_, 124.

Footnote 205:

_English Constitution_, I. 380.

It must not be forgotten, however, that the truth of historical questions does not depend on the counting of votes, or the weight of authority; nor that a vigorous minority has always protested on the other side. “It has been lately the fashion,” Hallam confesses, “to depreciate the value of Magna Charta, as if it had sprung from the private ambition of a few selfish barons, and redressed only some feudal abuses.”[206] It is not safe to accept, without a careful consideration of the evidence, the opinions cited even from such high authorities. “Equality” is essentially a modern ideal: in 1215, the various estates of the realm may have set out on the journey which was ultimately to lead them to this conception, but they had not yet reached their goal. For many centuries after the thirteenth, class legislation maintained its prominent place on the Statute Rolls, and the interests of the various classes were by no means always identical.

Footnote 206:

_Middle Ages_, II. 447. See, _e.g._ Robert Brady, _A Full and Clear Answer_ (1683).

Two different parts of the Charter have a bearing on this question; namely, chapter 1, which explains to whom the rights were granted, and