Magna Carta: A Commentary on the Great Charter of King John: With an Historical IntroductionMcKechnie, William Sharp
History
Magna Carta: A Commentary on the Great Charter of King John: With an Historical Introduction
McKechnie, William Sharp
Constitutional history -- England -- Sources; Law -- England -- History; Law -- England -- Sources; Magna Carta
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.
Public-domain text, read in full here on John Shaqi.
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