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 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.
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Footnote 196:
_Great Charter_, vii.
Footnote 197:
Pollock and Maitland, I. 151.
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