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
To the question, who had authority to enforce its provisions, the Great
Charter has likewise a clear answer, namely, a select band or
quasi-committee of twenty-five barons. Although the Mayor of London was
chosen among their number, it is clear that no strong support for any
democratic interpretation of Magna Carta can be founded on the choice of
executors; since these formed a distinctly aristocratic body. Yet this
tendency to vest power exclusively in an oligarchy composed of the heads
of great families may have been counteracted, so it is possible to
contend, by the invitation extended by the same chapter to the _communa
totius terrae_ to assist the twenty-five Executors against the King in
the event of his breaking faith. Unfortunately, the extreme vagueness of
the phrase makes it rash in a high degree to build conclusions on such
foundations. It is possible to interpret the words _communa totius
terrae_ as applying merely to “the community of freeholders of the
land,” or even to “the community of barons of the land,” as well as to
“the community of all the estates (including churchmen, merchants, and
commons) of the land,” as is usually done on no authority save
conjecture. Every body of men was known in the thirteenth century as a
_communa_; a word of exceedingly loose connotation.
So far, our investigations by no means prove that the equality of all
classes, or the equal participation by all in the privileges of the
Charter, was an ideal, consciously or unconsciously, held by the leaders
of the revolt against King John. Magna Carta itself contains evidences
which point the other way, namely, to the existence of class
legislation. At the beginning and end of the Charter, clauses are
carefully inserted to secure to the Church its “freedom” and privileges;
churchmen, in their special interests, must be safeguarded, whoever else
may suffer. “Benefit of clergy,” thus secured, implies the very opposite
of “equality before the law.” Other interests also receive separate and
privileged treatment. Many, perhaps most, of the chapters have no value
except to landowners; a few affect tradesmen and townsmen exclusively,
while chapters 20 to 22 adopt distinct sets of rules for the amercement
of the ordinary freeman, the churchman, and the earl or baron
respectively—an anticipation, almost, of the later division into the
three estates of the realm—commons, clergy, and lords temporal. A
careful distinction is occasionally made (for example, in chapter 20)
between the freeman and the villein, and the latter (as will be proved
later on) was carefully excluded from many of the benefits conferred on
others by Magna Carta. In this connection, it is interesting to consider
how each separate class would have been affected if John’s promises had
been loyally kept.
Public-domain text, read in full here on John Shaqi.
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