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
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.
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Footnote 198:
_Simon de Montfort_, 17.
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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.
Public-domain text, read in full here on John Shaqi.
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