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
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]
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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.
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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]
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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:
Public-domain text, read in full here on John Shaqi.
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